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11 Ala. App. 207

Hendrix v. State

Alabama Court of Appeals

Decided June 16, 1914

Alabama Court of Appeals · decided 1914-06-16

Heard before Hon. M. Sollie. Peter Hendrix was convicted of violating the prohibition law, and he appeals. No time ’was shown as to when the offense was committed, this was a material matter, and entitled defendant to the affirmative charge. — Holly v. State, 63 S’outh. 738; Doss v. State, 61 South. 478. Although the Supreme Court has power to make rules, it cannot do so contrary to the statutes. The rule relative to time and venue is found in sections 7139-40, Code 1907.

Key passage — most relied on by later courts

““Whenever the general charge is requested, predicated upon failure of proof as to time, venue or any other point not involving substantive right of recovery or of defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error for refusing said charge, unless it appears upon appeal, that the point upon which it was asked was brought to the» attention of the trial court before the argument of the 'case was concluded,”' etc.”

quoted by 1 later decision, including 19 Ala. App. 359 - Webb v. State

Relies on Doss v. State

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1914-06-16

How this case has been cited

Cited by 8 later decisions — most recently August 1991

8 state decisions

30191419201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

THOMAS, J.

¶1The evidence for the state tended to show that the defendant sold the state’s witness Nelson Dubose a pint of whisky on the streets of Clayton in the county of the prosecution, ‘ on a Saturday, but what month and year, and whether before or after the finding *208of the indictment, the bill of exceptions, which purports to set out all the evidence, fails anywhere to disclose.

¶2It* is incumbent on the state to prove that the offense was committed within 12 months before the finding of the indictment. — Code, § 7139, and cases there cited. Failing therein, as it did here, the defendant was entitled to the affirmative charge. — Doss v. State, 7 Ala. App. 121, 61 South. 478. However, rule 35 of circuit court rules, adopted by our Supreme Court on June 23, 1913, is applicable here. It provides, among other things, that:

¶3“Whenever the general charge is requested, predicated on the failure of the proof as to time, venue,'or any other point not involving a substantive right of recovery or defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error for refusing said charge, unless it appears upon appeal that the point upon which it was asked was brought to the attention of the trial court before the argument of the case was concluded.”

¶4It does not appear from the record here that the point upon which the charge was asked was brought to the attention of the.trial court, as required by the rule.

¶5The judgment of conviction is consequently affirmed.

¶6Affirmed.

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