Coker v. State

The indictment was in two counts. The first charged that the defendant manufactured prohibited liquor, and was a good count. The second count charged the possession of a still by defendant after September 30, 1919. By all of the decisions of this court and the Supreme Court is similar case, this count has been held to be fatally defective. McReynolds v. State (Ala.App.)89 So. 825;¹ Clark v. Stage (Ala.App.) 90 south. 16;³ Isbell v. State (Ala.App.) 90 552 So. 55;² Howard v. State, 17 Ala. App. 464, 86 So. 172; Glenn v. State, 158 Ala. 44, 48 So. 505; Marke v. State,159 Ala. 71-89, 48 So. 864, 133 Am. St. Rep. 20; Kelly v. State,171 Ala. 44, 55 So. 141; 1 Bish. Cor. Pro. (3d Ed.) § 404. These holdings are based upon the bill of rights, Constitution 1901, § 6, which declares the accused has a right to demand the nature and cause of the accusation against him and to have a copy thereof, and as was said by Somerville, J., in Bibb v. State, 83 Ala. 84, 88, 3 So. 711, 712:

"The indictment is the written accusation in the prescribed constitutional form. Where the indictment is, on its face, so ambiguous as not to show whether it charges a misdemeanour or a felony, it is liable to the objection of uncertainty, and does not conform to this requirement."

So then we hold, in line with the foregoing authorities, that the second count of the indictment is fatally defective. If the count had been demurred to it would admittedly have been error to have overruled the demurrer, and the fact that there remained a good count would not have cured the error.

In this case the defendant did not demur to the second count, by at the close of the evidence requested the court in writing to give the general affirmative charge, which the court refused, and so marked on the charge.

The question therefore is, Does a request for the affirmative charge sufficiently challenge a void count in an indictment so that its submission to the jury notwithstanding will constitute reversible error? In Benjamin's Case, 121 Ala. 26, 25 So. 917, Dowdell, J., speaking for the court said:

"There can be no doubt of the proposition, that an objection fatal on demurrer to an indictment will prevail on motion in arrest of judgment. 1 Brick. Dig. 517, § 962."

To the same effect if Francois v. State, 20 Ala. 83.

If, then, in such a case a motion in arrest of judgment would prevail, it would seem that the defendant would be entitled to have the jury instructed that, no matter what the evidence disclosed, a conviction could not be had. That is what the general affirmative charge means, and is an instruction to the jury that, whatever evidence may be, the defendant cannot be convicted under the count in the indictment to which the charge is directed. To state an extreme case, by way of illustration: Suppose an indictment contained two counts — on correctly alleging crime and the second no semblance of crime. As to the one with no semblance of crime be could ignore in the pleading, and still be entitled to an instruction that he could not be convicted under it; otherwise it would be submitted to the jury along with the evidence, and might be the count upon which the jury founded guilt and if, as in the Handy Case, a general verdict was returned, the verdict would be referred to the good count, and a conviction for crime result, when none had been proven. This was doubtless in the minds of the court when considering Shelton v. State, 143 Ala. 98, 39 So. 377, in which the present Chief Justice concurred, and in Cagle's Case,151 Ala. 84, 44 So. 381.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

June 30, 1922. Affirmed on authority of Ex parte State, In re Coker v. State, 207 Ala. 656, 93 So. 383.

¹ Ante, p. 173.

² Ante, p. 223.

³ Ante, p. 217.