
    Lester v. The State.
    
      Violating Prohibition Loao.
    
    (Decided May 1, 1913.
    62 South. 337.)
    
      Intoxicating Liquors; Indictment; Time of Offense. — An indictment in the Code form for retailing without license returned October-12, 1909, should have specified the time the sale was made, the period covered by the indictment being twelve months, and the prohibition law not having gone into effect until January 1, 1909, and failing to specify the time was defective; after the lapse of the twelve month period such an indictment would be good.
    Appeal from Macon Circuit Court.
    Heard before Hon. S. L. Brewer.
    John Lester was. convicted of violating the prohibition law, and he appeals.
    Reversed and remanded.
    Oscar S. Lewis, for appellant.
    The indictment should! have alleged that the offense was committed after Jan. 1, 1909, as it was preferred before the twelve month period had elapsed. — Kelly v. State, 171 Ala. 149; Scott v. State, 3 Ala. App. 148 ; Glenn v. State, 158 Ala. 44; Marks v. State, 159 Ala. 88.
    R. C. Brickell, Attorney General, for the State.
    The • indictment followed the Code form, and was not therefore, subject to demurrer. — Sec. 7161, Code 1907; Wilson v. State, 61 Ala. 151; Johnson v. State, 142 Ala. 1.
   THOMAS, J.

The indictment in this case was returned on October 12, 1909, charging the defendant with selling spirituous, vinous, or malt liquors without a license, contrary to law, and following the form prescribed in section 7161 of the Code. It was demurred to upon the ground, among others, that it did not allege’when the sale was made; that is, whether it was made before or subsequent to January 1, 1909, the time when the state-wide prohibition law went into effect in Macon county. — Acts Sp. S’ess. 1907, p. 76, § 13. Up to the date named Macon county was operating under a dispensary law, forbidding, under penalty, sales except in a dispensary or by the manufacturers of the liquor. — Local Acts' 1903, p. 737. The time covered by the indictment was the 12 months immediately preceding its finding (that is, the 12 months intervening between October 12, 1908, and October 12, 1909), during which time, it is observed, two separate laws on the subject were successively in force in Macon county. For a violation of which one of these was the defendant indicted? The indictment does not inform us, since it fails to state whether the sale was before or after January 1, 1909.

If we refer the indictment to the law existing prior to January 1, 1909, it must fall, because that law was not in existence during the entire 12 months immediately preceding the finding of the indictment, but only from October 12, 1908, to January 1, 1909, a little less than three months, during such time. If, on the other hand, we refer the indictment to the law which became effective on January 1, 1909, then the indictment must also fall for the same reason, since that law was in operation only about ten months of the time covered by the indictment. The demurrer should have been sustained under the following authorities: — Glenn v. State, 158 Ala. 44, 48 South. 505; Kelly v. State, 171 Ala. 44, 55 South. 141; Marks v. State, 159 Ala. 88, 48 South. 864, 133 Am. St. Rep. 20; Bibb v. State, 83 Ala. 87, 3 South. 711; McIntyre v. State, 55 Ala. 167; Dentler v. State, 112 Ala. 75, 20 South. 592.

If the indictment had been preferred, even though in the form it is in, after the expiration of 12 months from January 1, 1909, when the state-wide prohibition law Avent into effect in Macon county, it Avould have been valid. — Scott v. State, 3 Ala. App. 148, 57 South. 413.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.  