Opinion
4 Div. 600.
April 22, 1930.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
John F. Grimes and Annie Grimes were convicted of violating the prohibition law, and they appeal.
Reversed and remanded.
The indictment is as follows:
"The Grand Jury of said County charge that before the finding of this Indictment that John F. Grimes and Mrs. Annie Grimes, whose names otherwise are to the Grand Jury unknown, did sell, have in possession or possess illegally, give, barter, exchange, receive, deliver, carry or ship prohibited liquors contrary to law.
"2. The Grand Jury of said County further charge that before the finding of this indictment that John F. Grimes and Mrs. Annie Grimes, whose names otherwise are to the Grand Jury unknown, did sell, have in possession or possess illegally, give, barter, exchange, receive, deliver, carry or ship liquors or beverages contrary to law.
"Against the Peace and Dignity of the State of Alabama."
The following are grounds of the demurrer interposed to the indictment:
"1. That the defendant is charged in the alternative with selling, having in possession, giving, exchanging, receiving, delivering, carrying or shipping prohibited liquors contrary to law; that part of said alternative averment to-wit: sell, have in possession, give, barter, exchange, receive, and deliver are misdemeanors, and to carry or ship prohibited liquor is, if more than the prescribed amount, a felony, wherefore, this defendant is not advised whether he is called upon to defend a misdemeanor or a felony."
"3. It is not alleged in said counts whether or not the alleged offense was committed before or after the taking effect of the Act of the Legislature of 1927, said Act being No. 605, and which appears at page 704 of the Acts of 1927."
J. C. Fleming, of Elba, and J. C. Yarbrough, of Enterprise, for appellants.
If two offenses be charged in one indictment, which is faultless in form, and it be developed in the evidence that the two defendants committed their several offenses at different times or places, that they are not guilty of one and the same offense, the proof does not sustain the indictment. McGehee v. State, 58 Ala. 360; Segars v. State, 88 Ala. 146, 7 So. 46; Townsend v. State, 137 Ala. 93, 34 So. 382. An indictment is bad and is subject to demurrer which does not allege the time, where a statute is passed making an act, which was a misdemeanor, a felony, where the statute of limitations has not run. Bibb v. State, 83 Ala. 84, 3 So. 711; Howard v. State, 86 So. 172, 17 Ala. App. 464.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellants were jointly indicted, jointly tried, and each convicted, for and of the offense of violating the criminal law of this state by selling, or having in possession illegally, prohibited liquor.
We see no fault in the indictment, and think the demurrers thereto properly overruled. Code 1923, §§ 4621, 4556, Form 101.
The indictment charging appellants jointly with the commission of a crime, it was necessary, before a conviction of either might be sustained, that the evidence be of a nature which tended to show the commission, by each of them, of one and the same offense. McGehee v. State, 58 Ala. 360. Or, as perhaps stated more appropriately by Mr. Justice Stone, in the opinion in the said McGehee Case: "* * * If two offenders be charged in one indictment, which is faultless in form, and it be developed in the evidence that the two defendants committed their several offenses at different times or places — in other words, that they are not guilty of one and the same offense — the proof does not sustain the indictment. Only those persons who participate in the same offense should be joined in one indictment."
The holding in the said McGehee Case has never, so far as we are advised, been departed from by our Supreme Court. Clearly, the opinion for the majority of this court, written by Judge Samford, which was reviewed by the Supreme Court, and undisturbed, in the case of Horn v. State, 22 Ala. App. 459, 117 So. 283; Id., 217 Ala. 677, 117 So. 286, did not have such an effect.
It appears that in this case the conviction of appellants seeks to rest upon evidence of separate and distinct offenses committed by them severally, at separate and distinct times. And it cannot do so. Perhaps it might be contended that there was at least some evidence tending to show a participation by each appellant in the first offense described in the testimony as having been committed by Annie Grimes. But we apprehend that if that contention were urged, as a reason for upholding the judgments of conviction, an unescapable answer would be that the judgments would have to be reversed because of the later admission, over proper objection, of evidence of other, and distinct, offenses, etc. At any rate, the judgments must be and are reversed, and the cases remanded.
Reversed and remanded.