Wesson v. State , 109 Ala. 61 ( 1895 )

McCLELLAN, J.

It is not necessary, under our law, in cases like the present one, for the indictment to identify the offense intended to be charged by any reference to the time, place, or circumstances of its commission ; and it is never done in practice. It may well be, therefore, that two indictments,-in precisely the same language, and returned at the same time by the grand jury, against the same defendant, for violating a law prohibiting the barter,.exchange or sale of vinous, spirituous, or malt liquors, each charge an entirely different and distinct offense in respect of that intended to be charged in the other. So that, where there has been a conviction on one such indictment, and this is pleaded on the trial of the other, the plea averring the facts we have hypothesized above, and, further, that the offense for which the conviction was had is identical with the offense intended to be charged in the indictment still pending, a replication by the State that, notwithstanding the identity of the language of the two indictments, the time covered by both, though not expressed in either, the grand jury returning both, and a conviction under one, the offenses charged in them severally are separate and distinct offenses, the one to be tried having in fact been committed, if at all, at a different time and place, and the alleged sale having been made to a different person, from the time and place and person at which and to whom the defendant was convicted of making a prohibited sale, is a full answer to such plea. That was the substance of the replication interposed in this case ; and the court properly overruled'defendant’s demurrer to it, which proceeded solely on the theory that the identity of indictments, grand jury, and defendant demonstrated the identity of offense.

The agreed facts show, unequivocally, that the offense on trial was not the offense for which the defendant had been convicted ; and there was no exception reserved to the affirmative charge for the State on the issue presented-by this plea of former conviction, nor is the action of the court in giving this instruction assigned as error.

So, too, the defendant requested several charges which the court refused to give, but he reserved no exceptions to these rulings, nor are they assigned as errors. The statute which dispenses with the necessity in civil and criminal cases of noting exceptions to rulings on charges requested,.makes it essential to a presentation of such rulings here that they should be assigned as errors.—Acts 1894-95, pp. 126—7; Nuckols v. State, ante, p. 2.

The judgment of the circuit court must be affirmed.