(90 So.) against the appellees for some amount, to be fendant appeals. Reversed, and judgment determined by a jury. rendered for defendant. It is true there is a conflict in the testimony; but if the testimony of the appellant is true and we see no reason for saying it is unbelievable-then the appellant would be entitled to recover for the value of the con verted property, less the $5 per thousand feet sawing cost. The appellant, Lefere, testified to the contract he had with the appellees in which it was agreed that he would deliver the logs and the appellees would saw them into suitable lumber for appellant, which they would together ship to the New Orleans market by water; that several thousand feet of this lumber was sawed but was not delivered to the appellant, nor accounted for when demand was made for it; that appellees admitted they had sawed the lumber and dis Gex, Dedeaux & Waller, of Gulfport, for appellant. J. L. Taylor, of Gulfport, for appellee. SMITH, C. J. The evidence wholly fails to support the allegations of the appellee's declaration; consequently the peremptory instruction requested by the appellant should have been given. Reversed, and judgment here for appellant. (18 Ala. App. 246) BARRETT v. STATE. (6 Div. 839.) (Court of Appeals of Alabama. June 14, 1921. On Rehearing, July 19, 1921.) Criminal law 575-Compliance with statute prohibiting trial of person on same or next day after arrest without his consent not jurisdictional. Loc. Acts 1919, p. 127, § 20, providing that no person shall be tried in the Jefferson county court of misdemeanors on the same day or the next day after arrest without his consent, is a mere rule of practice, and compliance therewith is not a jurisdictional requirement. 2. Criminal law 1144(7)-County court presumed not to have tried defendant on the same or the next day after arrest in violation of statute. posed of it to other parties, and agreed they. would pay appellant for it later on. This was a declaration or admission by the appellees against their interest, and was competent proof corroborating the testimony of the appellant on the main issue as to the agreement and delivery of the logs by the appellant to the appellees. The denial of this admission by the appellees merely presented a conflict to be submitted to a jury. There is also a conflict in the testimony as to the number of logs delivered and the amount of lumber sawed out of them, but certainly the evidence in the case is sufficient to show that logs were delivered, sawed into lumber, and converted by the appellees to their own use; these issues should have gone to the jury instead of granting a peremptory instruction | next day after his arrest without his consent, for the defendants below. For the error in granting the peremptory instruction, the judgment of the lower court is reversed, and the case remanded. Reversed and remanded. (127 Miss. 308) BOGGS v. JEWETT. (No. 22131.) (Supreme Court of Mississippi, Division A. Dec. 5, 1921.) (Syllabus by the Court.) Trial 169-Verdict should be instructed for defendant where plaintiff's evidence fails to support declaration. On request by the defendant in a civil cause the jury should be directed to return a verdict in his favor when the evidence fails to support the allegations of the plaintiff's declaration. Appeal from Circuit Court, Harrison County; D. M. Graham, Judge. Action by R. L. Jewett against W. R. Boggs. From a judgment for plaintiff, de The Court of Appeals, in the absence of evidence to the contrary, will presume that person convicted in Jefferson county court of misdemeanors was not tried on the same or the in violation of Loc. Acts 1919, p. 127, § 20. The Court of Appeals will not consider a constitutional question, unless necessarily involved in the case. On Rehearing. 4. Criminal law 1001 Entry suspending sentence held a part of the judgment. Entry immediately below signature of judge on judgment of conviction, reading, "12 months suspended pending her good behavior and passed 30 days," held a part of the judgment, continuing court's jurisdiction over defendant and empowering it to amend the judgment as to the sentence and commit defendant back to custody of the officers of law for execution of the sentence. 5. Constitutional law 74-Criminal law Loc. Acts 1919, p. 128, § 23, authorizing the Jefferson county court of misdemeanors to suspend execution of sentence conditionally, held constitutional as against contention that it invaded executive power of government, vest For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed with the power to pardon and reprieve, in [the Supreme Court and this court have time view of Code 1907, §§ 7628, 7632, 7639, 7653. Samford, J., dissenting in part. and again held not to be a sufficient judgment of a court of record. (And the court trying this cause is such a court as provided by sec Appeal from Circuit Court, Jefferson Coun- tion 8 of the act creating it.) Besides, in the ty; Wm. E. Fort, Judge. Petition by Ollie Barrett, alias Rose, for habeas corpus. From judgment denying the writ, petitioner appeals. Affirmed. act creating the court (section 22), a form of judgment is prescribed, which must be signed by the judge. So that, assuming that the court had the power, under section 23 of the act, or under the general law to susProsch & Prosch, of Birmingham, for ap- pend the sentence (which is not here decided), pellant. it appears that such was not done, and thereHarwell G. Davis, Atty. Gen., W. M. Wood-fore it is not necessary to a decision of this all, of Birmingham, and J. J. Mayfield, of case to pass upon the constitutionality of Montgomery, for appellee. section 23 of the act. Where this is the case the court will not consider the constitutional question not necessarily involved. Smith v. Speed, 50 Ala. 277; Joiner v. Winston, 68 Ala. 129; Hill v. Tarver, 130 Ala. 592, 30 South. 499; Bray v. State, 140 Ala. 172, 37 South. 250. We have, then, in the case at bar, a valid judgment of conviction against the defendant which includes a sentence to hard labor, SAMFORD, J. Petitioner was, on July 31, 1920, tried in the Jefferson county court of misdemeanors, on an affidavit dated the same day, charging vagrancy. She was convicted, fined $25, and as additional punishment was sentenced to 12 months hard labor for the county. A note is made as a part of the judgment, "An agreement to leave town;" also following the judgment and not a part which sentence began on the day of the renthereof, "Twelve months suspended pending dition judgment, to wit, July 31, 1920 (Scottsher good behavior and passed thirty days." boro v. Johnston, 121 Ala. 397, 25 South. 809), Each 30 days thereafter until and including but no part of which has been served. Under October 30th the entry was regularly made the Johnston Case, supra, it would seem that on the docket of the court, "Passed thirty in any event the termination of the sentence days." On October 7th alias warrant was would be one year from July 31, 1920. The issued, and case set October 12th. On No-question then presented here is whether or vember 5th, the case having been passed by regular orders to that time, the court entered an order of commitment for execution of the sentence of July 31, 1920. [1, 2] By an act of the Legislature approved September 10, 1919 (Acts 1919, p. 121), establishing the Jefferson county court of misdemeanors, jurisdiction was conferred on said court to try and determine certain causes, including the offense with which this defendant stands convicted. Section 20 of said act provides: "That the court shall be opened at the discretion of the judge of said court any day during the week (except Sunday) for the trial of offenses committed within the jurisdiction of said court, but no person shall be tried on the same day or the next day after his arrest with out his consent." This is not a jurisdictional requirement, but establishes a rule of practice in the court, which, in the absence of evidence to the contrary, this court will presume was complied with in the trial of the petitioner. [3] According to the record, then, the defendant stands convicted before a court of competent jurisdiction of the crime of vagrancy, and sentenced to hard labor for the county of Jefferson for a term of 12 months, which in no event, except by pardon, would expire until July 31, 1921. The docket entry suspending the sentence does not appear to be a part of the judgment; nor does it ap not the petitioner could be taken into custody by the authorities and compelled to serve the unexpired part of the sentence after he had been let to go by the court rendering the judgment. This particular question does not appear to have been decided by the Supreme Court of this state, but in other jurisdictions the decisions are in hopeless conflict. But this court, in the case of Daley v. City of Decatur, 90 South. 69, has placed itself in line with those states, holding that, in such a case as the one at bar, the trial court has lost jurisdiction, and hence the petitioner is entitled to her discharge. It follows that the trial judge erred in denying the petitioner the relief prayed. The judgment is reversed, and a judgment will here be entered discharging petitioner. On Rehearing. BRICKEN, P. J. On application for rehearing, the court has reached the conclusion that it was in error in holding on the original submission that the trial court had lost jurisdiction and control as to the judgment of conviction. [4] The court fell into error by considering the minute entry suspending the sentence as not being a part of the original judgment of the court, and in treating it as a mere docket entry without the force and effect of a judgment. This entry appears just below the signature of the judge, and is as follows: (90 So.) havior and passed 30 days." On a more This case is distinguished from the case of careful inspection and consideration of the Daley v. City of Decatur, 90 South. 69, transcript of the record in this case, the and the case of Scottsboro v. Johnston, 121 court is now convinced that the above-quoted Ala. 397, 25 South. 809, cited in the opinion entry was intended to be and was a part of on the original hearing, for the reason that the original judgment entry. That it was in those cases the trial court had no statumade at the same time or contemporaneous tory or common-law right or power to either with the entry of the original judgment, and suspend the imposition or the execution of was therefore a part of it. If the judge's the sentence, and hence the acts, orders, or signature had appeared just below the entry quasi judgments of the court in those cases instead of just above, as it does, there could were tantamount to a discharge of the debe no doubt that the above-quoted entry was fendant or prisoner from custody; and hence a part of the original judgment, and not a there was no order, judgment, or sentence subsequent memorandum or docket entry. of any court of competent jurisdiction in The following authority supports this holding those cases which authorized the detention of the court in treating the above-quoted and custody of the prisoner at the time of entry as a part of the original judgment bringing of the habeas corpus. entry, and not a mere subsequent memorandum on the docket: Aline Clisby v. State, 86 South, 140. [5] In this case the court of misdemeanors for Jefferson county is given express statutory authority to suspend the execution of sentence, just as are the circuit courts of this state by virtue of sections 7628, 7632, 7639, and 7653 of the Code. Consequently the trial The judgment was therefore kept under the jurisdiction and control of the court by virtue of the original judgment entry, and by the subsequent orders of continuance as ap-court had express authority to suspend the pear upon the record. The trial court there- sentence at the time of the rendition of the fore had the power to alter or amend the judgment and to make it a part of the judgjudgment or the order as to sentence at any ment entry and to keep the judgment within time between the original date of sentence, the control of the court until the next term and when the trial judge ordered and direct- of the court as was done in this case. This ed that the sentence be executed. This being court, as well as the Supreme Court, has true, the circuit court ruled correctly in deny-held that section 7628 of Code 1907 was not ing the petitioner her writ of habeas corpus unconstitutional; that it did not attempt to and in committing her back to the custody of the officers and agencies of the law to execute the sentence in accordance with the judgment and orders of the court. Moreover, it is not disputed, and was decided on the original hearing in this case, that this "defendant stands convicted before a court of competent jurisdiction of the crime of vagrancy and sentenced to hard labor for the county of Jefferson for the term of 12 months." Under the very terms of that judgment the sentence of hard labor will not expire until the 31st day of July, 1921. Hence, if the entry which we quoted above was not a part of the original judgment, but was void, still there would be a valid judgment and sentence, the terms of which had not expired when the alias warrant was issued on October 12, or on November 5, when the court entered another order directing the execution of the original sentence of July 31, 1920. This court and the Supreme Court have repeatedly refused to discharge defendants and prisoners from custody where there was a valid judgment but an irregular or void sentence; and in such cases they reversed the case back to judgment, with directions to the trial court to enter proper orders of sentence. See Ex parte Smith, 1 Ala. App. 535, 56 South. 247; Haley's Case, 1 Ala. App. 533, 56 South. 245; Ossie v. State, 147 Ala. 152, 41 South. 945; Ex parte State, 76 Ala. 482. authorize the court to absolutely or indefinitely suspend the execution of a sentence to such an extent or in such manner as to be an invasion of the executive power of the government in which alone the Constitution vests the power to pardon and reprieve. Circuit courts have always exercised just such power as is conferred on this court by the statute of this state which created the court; and the statute also expressly confers on the court of misdemeanors for Jefferson county the powers of the circuit court as to such matters. There is a great distinction between the power of the court to suspend absolutely and indefinitely a sentence from the power to temporarily or conditionally suspend the execution, or to keep the judgment or sentence within the control of the court for the time and in the manner provided by law. This court expressly decided in the case of Vinson v. State, 16 Ala. App. 536, 79 South. 316, that section 7628 of Code 1907 was not unconstitutional, and not an invasion of the pardoning power. Section 23 of the act creating this court (Local Acts 1919, p. 128) expressly authorizes the trial court to suspend the execution of sentence conditionally, and temporarily, and we find no order or judgment of the court that was not authorized by this statute. It therefore follows that the application for rehearing must be granted, that the judgment of reversal be set aside, and a judgment of The indictment consisted of five counts, all charging the manufacture of prohibited liquors or having in possession a still, apparatus or appliances for manufacturing prohibited liquors. Count five charges that since the 30th day of September, 1919, Herbert Clark did have in his possession a still, apparatus SAMFORD, J. Upon a consideration of this application I concur in the conclusion reached by the majority that the petitioner or appliance to be used for the purpose of should not be discharged, but, adhering to the views expressed in the original opinion, I still am of the opinion that the court had lost jurisdiction of the sentence, and petitioner's future confinement should date from the date of the original sentence. (18 Ala. App. 217) CLARK V. STATE. (4 Div. 673.) (Court of Appeals of Alabama. 1921.) June 21, manufacturing alcoholic, spirituous, malted liquors or beverages contrary to law. The indictment was filed in court on October 20, 1920. The other facts sufficiently appear. G. Ernest Jones, of Clayton, for appellant. Harwell G. Davis, Atty. Gen., for the State. BRICKEN, P. J. [1] Count 5, of the indictment under which this defendant was convicted, was defective for the reason that it covered a period of time when it was no offense against the law to commit the acts complained of therein. This count was based upon the statute passed by the Leg1. Indictment and information 87 (8)-In-islature during its 1919 session, Acts 1919, dictment, charging offense prior to statute p. 1086, and was approved September 30, making it offense, is defective. 1919. It contained no special provision as An indictment, charging the possession of a to its date of operation, and, it being a penal still since September 30, 1919, is defective, act, it therefore became operative and took because Acts of 1919, p. 1086, approved Sep-effect 60 days after its approval, under the tember 30, 1919, which first made such posses- provisions of section 7805, Code 1907. It sion an offense, and which contained no special therefore appears that the act took effect on provision as to its date of operation, took November 30, 1919, and not September 30, effect under Code 1907, § 7805, 60 days after approval, so that the indictment charged the 1919, as alleged. During the period of 60 days commission of an offense during the period of immediately after its approval which period 60 days during which the acts charged did not covered all the month of October, 1919, constitute an offense. and also the month of November of that year up to the 30th day thereof, the defendant could have committed every act charged or contained in count 5, without violating any law of this state. 2. Indictment and information 87 (8)-Time is essential averment, where acts have been recently made an offense. In an indictment charging commission of acts which have been made an offense within three years covered by the indictment, the time of the alleged offense was a necessary ingredient and the indictment must allege it was committed during the time covered by the indictment in which the law was in effect. 3. Intoxicating liquors 236(19)-Evidence held insufficient to sustain conviction of possession of still. In a prosecution for unlawful possession of a still, evidence which showed merely that the still was located within 200 yards of defendant's house, and that a path led from the house to the still, is insufficient to sustain a convic tion. [2] The statute being a new one, creating the offense within the period of time (three years) covered by the indictment, time therefore was a necessary ingredient, and it was necessary to allege that the offense was committed during the time covered by the indictment and in which the law was in operation or effective. McIntyre v. State, 55 Ala. 167; Bibb v. State, 83 Ala. 84, 3 South. 711; Dentler v. State, 112 Ala. 70, 20 South. 592. For it certainly cannot be questioned that when a statute makes an act punishable from and after a given day, the time of the alleged commission of the act is an essential ingredi Ient of the offense to the extent that it must be alleged in the indictment to have been committed after that day. This identical question has been so decided during the present term of this court. Stephen Isbell v. State, 90 South. 55; McReynolds v. State, 89 South. 825. [3] While this question is conclusive of this appeal, and for that reason it would appear that nothing further need be said, yet a careful examination of the testimony as shown by the record fails to disclose any (90 So.) evidence whatever to sustain the verdict of session or control; the defendant himself the jury or the judgment of guilt rendered in testifying that he had never even seen the this case, nor is there any evidence from still, and did not know it was there. No teswhich the guilt of the defendant could be in-timony was offered to refute these facts, and ferred. Upon the trial of this case there it is difficult to understand how the jury was evidence showing that a still was found from this evidence could ever conclude and in a pasture, some considerable distance from so find that from the evidence in this case it this defendant's house, and that a path led was shown that beyond all reasonable doubt from defendant's house down to a spring and and to a moral certainty the defendant was on from there over a fence into the pasture guilty as charged. Such a verdict, based where the still was located. Some of the tes-upon evidence here offered, should not be suftimony showed that this path continued on fered to stand. The court should have given by the still through and out of the pasture the affirmative charge for defendant as rein the direction of other houses as near orquested, and should have ordered his disnearer to the still as the house of the defend-charge from further custody. Failing in this, ant. The state's witnesses testified only to the judgment of conviction is reversed, and these facts, and in addition thereto stated one here rendered in favor of defendant disthey did not know who owned or controlled charging him from further custody in this the pasture or who was in possession of it, proceeding. that they never saw the defendant there, and never found the still in his possession. To sum up the evidence offered by the state, a still was found about 200 yards from the defendant's house, and a path led from his house to the still. Reversed and rendered. No. 24233. (149 La. 669) BOURGEOIS v. UNION BRIDGE & CON- (Supreme Court of Louisiana. Oct. 31, 1921.) (Syllabus by Editorial Staff.) Master and servant 412-Compensation case may be remanded for taking of further evidence. the injury, the cause may be remanded for the taking of further evidence. [4] The same rules of evidence apply in cases involving the violation of the prohibition laws in its several phases as it does in all other criminal cases, and there should be no differentiation in the application of these rules simply because the accused is charged with this character of offense. In the instaut case there was no testimony showing, or even tending to show, that the path in question Where a servant secured contained tracks of any kind, much less a judgment tracks that bore the slightest resemblance against a master under the Workmen's Compensation Act for injuries resulting in total to any track made by defendant. In fact disability to do work, and affidavits showed that it was not shown that the defendant had after judgment plaintiff procured and continued ever traveled or traversed the path in ques-employment at higher wages than previous to tion. It was not shown that he owned, or had control or possession of the land upon which the still was found. In fact, the testimony of the state merely showed the still and the path and nothing more, and under no rules of evidence or measure of proof are such facts sufficient within themselves, or without more, to overcome or rebut the legal presumption of innocence which attends any one accused of the commission of a criminal offense. It follows that the defendant was entitled to his discharge on the testimony of the state and the ruling of the court to this end was sought in nearly every conceivable manner by the defendant, and each of these rulings, denying the discharge of the defendant, was error, any of which would effect a reversal of this case. Appeal from Civil District Court, Parish of Orleans; H. C. Cage, Judge. Suit by Paul Bourgeois against the Union Bridge & Construction Company under the Workmen's Compensation Act, in which the trial court found for the plaintiff, and the defendant appeals. Remanded for taking of further testimony. Eugene J. McGivney and Solomon S. Goldman, both of New Orleans, for appellant. Wm. H. Byrnes, Jr., of New Orleans, for appellee. PROVOSTY, J. This suit is under the The evidence as a whole, which includes Workmen's Compensation Act (Laws 1914, that of the defendant and his witnesses No. 20) for total disability to do any work shows affirmatively and without conflict that whatever. The trial court found for plaintiff, the land on which the still was found was Defendant has filed in this court affidavits not owned or controlled or even in the pos- showing that 20 days after the signing of the session of the defendant. It shows further judgment herein, which judgment is predicatwithout dispute that the still in questioned upon the total incapacity of the plainwas not that of the defendant or in his pos- tiff to do any work whatever, and 22 days For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |