Opinion
8 Div. 717.
June 15, 1920.
Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.
Memory McMullen was convicted of manufacturing prohibited liquors, and he appeals. Reversed and remanded.
Simpson Simpson, of Florence, for appellant.
Counsel discuss errors insisted upon, relative to the admission and exclusion of evidence, but do not brief the subject discussed in the opinion.
J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Counsel for the state admit the invalidity of the indictment, but suggest that the cause be reversed, and the defendant held until discharged by due process of law.
The indictment does not show authentication as provided by Code 1907, § 7300, which reads:
"The concurrence of at least twelve grand jurors is necessary to find an indictment; and when so found it must be indorsed 'a true bill,' and the indorsement signed by the foreman."
The indictment, under the laws of this state, is an indispensable constituent of the record; and before a defendant can be arraigned and put on his trial for a felony, the record must disclose an indictment that it is the finding of a grand jury, duly organized in the mode prescribed by law, and by them returned into and accepted by the court, and it is necessary for its proper authentication that it shall bear the indorsement "A true bill," which indorsement must bear the signature of the foreman of the grand jury, and it must be presented into open court in the presence of at least 12 grand jurors, including the foreman, and must be indorsed "filed," and the indorsement dated and signed by the clerk of the court. Code 1907, §§ 7300, 7152. When these indorsements are made, it is legal evidence of the finding and return of the grand jury. Wilson v. State, 128 Ala. 17, 29 So. 569. In the instant case, the indictment does not bear the necessary indorsement, "A true bill;" hence there was no proper authentication thereof.
The purported indictment contained in this record is void for another reason. The defendant was indicted under section 15 of the act approved January 25, 1919 (Acts 1919, p. 16), for the suppression of intemperance, etc., the act being known generally as the "Weakley Bone Dry Law."
The indictment contained only one count, and is as follows:
"The grand jury of said county charge that, before the filing of this indictment Robert Rinks and Memory McMullen made or manufactured, or was engaged in making or manufacturing, spirituous, vinous, or malt liquors contrary to law, against the peace and dignity of the state of Alabama."
The words "before the filing," instead of "before the finding," of this indictment, might be treated as a clerical misprision. The indictment was void for uncertainty in not stating either the time of the commission of the alleged offense, or that it was committed since the adoption and approval of the act, to wit, January 25, 1919, the date upon which the act became operative under its terms.
The identical question appeared in the case of Burrell Howard v. State (April 13, 1920) ante, p. 464. 86 So. 172. In that case this court said:
"Prior to the enactment of the so-called bone dry law it was unlawful to make or manufacture any of the liquors designated in section 1 of said act, which includes almost every known alcoholic or intoxicating liquors or beverages, and to do so was declared to be a misdemeanor, punishable by fine, or hard labor for the county in which the offense was committed, or by imprisonment in the county jail, one or both. The later act, approved January 25, 1919, was in effect an amendment to the former statute, and changed the offense from that of a misdemeanor to a felony, the punishment under the last statute being confinement at hard labor in the penitentiary for not less than one year or longer than five years, to be fixed within those limits by the court or judge trying the case. It thus appears that while the offense of making or manufacturing prohibited liquors under the statute in existence prior to January 25, 1919, was a misdemeanor, it was made a felony to do so on and after that date. Therefore during the period covered by this indictment the offense charged here was both a misdemeanor and a felony, resulting in the fact that time became a material ingredient of this offense. This being true, under the statute and the universal decisions of this court and of the Supreme Court, it became necessary for the indictment to aver the time when the offense complained of was committed. Code 1907, § 7139; Miller v. State, 16 Ala. App. 534, 79 So. 314; Bibb v. State, 83 Ala. 84, 3 So. 711. An indictment under section 15 of the 'bone dry law' (Acts 1919, p. 16), for the offense of distilling, making or manufacturing alcoholic or other prohibited liquors or beverages, should either aver the date of the commission of the offense (which date must appear to have been subsequent to the date of the passage and approval of the act), or that said offense was committed before the finding of the indictment and after (or since) the 25th day of January, 1919. Authorities, supra.
"The indictment here does not contain this necessary, material averment, for it does not show whether the offense was committed before the act of January 25, 1919, was passed and approved, in which event the offense would have been a misdemeanor, or afterwards, which would have made it a felony, resulting, therefore, that it does not make it appear whether the accusation brought against the defendant is a misdemeanor or a felony. This allegation is essential to a valid indictment and the reason therefor is clearly apparent. The accused has the constitutional right to 'demand the nature and cause of the accusation against him, and to have a copy thereof.' Const. 1901, art. 1, § 6. 'The indictment is the written accusation in the prescribed constitutional form,' and when, as here, the indictment on its face is so ambiguous, vague, and uncertain as not to show whether it charges a misdemeanor or a felony, it must be held to be void for uncertainty, and insufficient upon which to predicate a judgment of guilt, or sentence of the accused thereunder. To illustrate the fatal uncertainty of the indictment here under consideration: If the defendant should enter a plea of guilty to this indictment, or if the jury, as was done in the case at bar, should find him guilty 'as charged,' how could the court look at the record and know what judgment to pronounce — whether to refer the verdict to the misdemeanor charged in the indictment, or to the felony also charged in the indictment — the indictment here charging as it does both offenses; how and by what authority could the court sentence the defendant under the statute of 1916 (Acts 1915, p. 1) or the later statute of 1919? For these reasons we are of the opinion that the indictment in this case is so vague, uncertain, and ambiguous, it is therefore fatally defective, and as a result will not support the judgment of conviction rendered thereon. Wilson v. State [supra]; Bibb v. State [supra]; Shelton v. State, 1 Stew. Porter, 208; McIntyre v. State, 55 Ala. 167; Dentler v. State, 112 Ala. 70, 20 So. 592; State v. Wise, 66 N.C. 120."
For the errors pointed out, the judgment rendered in this case is reversed, and the cause remanded.
Reversed and remanded.