GARDNER, Chief Justice.
¶1
Upon reconsideration of this case, the majority of the Court have reached the conclusion the opinion of the Court of Appeals upon the matter of construction of Title 15, § 370, Code 1940, granting the right of appeal to the state in criminal cases, wherein a statute has been ruled unconstitutional, is in harmony with the principle announced in State v. Hewlett , 124 Ala. 471 27 So. 18 State v. Powe , 28 Ala.App. 402 185 So. 781
¶2
Rehearing granted. Writ denied.
BOULDIN, BROWN, and LIVINGSTON, JJ., concur.
THOMAS and FOSTER, JJ., dissent.
LAWSON, J., not sitting.
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Case posture Posture Certiorari to Court of Appeals.
Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of State v. Earl Martin, 30 Ala. App. 466 , 10 So.2d 671 , wherein the appeal by the State from a judgment sustaining a demurrer to affidavit was dismissed.
Writ denied on rehearing.
The affidavit filed against defendant was as follows: Before me, Chas. E. Bragg, Judge of Probate and ex-officio Judge of the County Court in and for said County and State, personally appeared Amos Spiller, who being duly sworn, on oath says that since September 16th. 1939, in said State and County, that he has probable cause for believing and does believe, that Earl Martin did take, catch, kill or attempt to take, catch or kill, or did have in possession seventeen (17) muskrat furs, skins or pelts, on which there was at such time a closed season, contrary to Section 3, of Fur Regulations, approved, proclaimed and promulgated by Walter B. Jones, Director of Conservation of the State of Alabama, on September 1st. 1939, against the peace and dignity of the State of Alabama.
To the affidavit defendant interposed this demurrer:
Now comes the defendant Earl Martin, and demurs to the affidavit filed herein against him, and for grounds thereof assigns the following:
1. That the purported affidavit of Amos Spiller was not made before Chas. E. Bragg, Judge of Probate and ex-officio Judge of County Court.
2. That the purported affidavit of Amos Spiller against Earl Martin was not filed with and signed by E. E. Byars, Clerk of the Circuit Court and ex-officio Clerk of the County Court.
3. That said affidavit fails to charge any offense known to the law.
4. That said affidavit is frivolous, in that it undertakes to charge that the defendant, Earl Martin did certain things which are not prohibited by law.
5. For that it charges the defendant with taking, catching, killing or attempting to take, catch or kill or having in possession 17 musk rat furs, skins or pelts, without describing the manner or method of taking, catching, killing or attempting to take, catch or kill the same, or of distinguishing between musk rat furs, skins, or pelts.
6. For that the same fails to state that the acts complained of in said affidavit constituted a breach of the Criminal law.
7. For that the same attempts to charge the defendant, Earl Martin, with the violation of a rule or regulation, without setting out the substance of such rule or regulation.
8. For that the same attempts to charge the defendant, Earl Martin, with the violation of a rule or regulation, without setting out the substance of such rule or regulation, and without averring the date on which the same should become effective.
9. For that the same attempts to charge the defendant, Earl Martin, with the violation of a rule or regulation without setting out the substance of such rule or regulation, and without averring that the defendant had any knowledge or notice of such rule or regulation.
9 1/2. For that the same attempts to charge the defendant, Earl Martin, with the violation of a rule or regulation alleged to have been approved, proclaimed and promulgated by Walter B. Jones, without alleging or setting forth the authority of the said Walter B. Jones to approve, proclaim and promulgate such rules and regulations.
10. For that the same attempts to charge the defendant Earl Martin with the violation of a rule or regulation alleged to have been approved, proclaimed and promulgated by Walter B. Jones on September 1, 1939, and without averring the date that said rule or regulation would become effective in Lawrence County Alabama.
11. For that no facts are alleged showing that the defendant, Earl Martin, had knowledge or notice of the approval, proclaiming and promulgation by Walter B. Jones on September 1, 1939 that he should not take, catch, kill, or attempt to take, catch, or kill or have in his possession musk rat furs, skins or pelts.
12. For that it is not alleged that it is a violation of the law to take, catch, kill or attempt to take, catch, or kill or have in possession musk rat furs, skins, or pelts at the time of the commission of the alleged offense herein charged.
13. For that it is not alleged in the affidavit or complaint that the premises of the defendant were not being protected from the ravages and depredations of these animals.
14. For that it is not alleged in the affidavit or complaint that the musk rats therein complained of were caught, taken or killed on premises not owned or controlled by the defendant.
15. For that it is not averred the time, place, and nature of the taking, catching or killing of the musk rats mentioned in the complaint or affidavit.
16. For that it is not averred the time, place and nature of the taking, catching, or killing of the musk rats mentioned in the complaint or affidavit, specifying whether or not such act or acts were done before or after knowledge by the defendant of the approval, proclamation, and promulgation of such alleged rules and regulations by Walter B. Jones.
17. For that it is not averred that Walter B. Jones had the authority to promulgate any rules against the taking, catching or killing, or attempt to do so of any musk rats.
18. For that any attempt by Walter B. Jones to approve, promulgate or proclaim any rule or regulation governing the conduct of the defendant is invalid.
19. For that any act of the legislature empowering, authorizing and directing Walter B. Jones, as director of conservation of the State of Alabama to approve, proclaim or promulgate any rule or regulation governing the conduct of any citizen of Alabama, is unconstitutional and void, in that the legislature cannot delegate its law making powers.
20. For that it is not averred that the furs complained of were not obtained by means of an illegal search or seizure.
21. For that the furs complained of were obtained through an illegal search or seizure of defendant's home and curtilage, no averment in the affidavit to the contrary and on a void affidavit of search and seizure.
22. For that there is no averment in the affidavit that the furs complained of were obtained through a legal search or seizure of defendant's home and curtilage, based on or issued by the authority of a legal affidavit.
23. For that there is no averment in the affidavit or complaint that the search or seizure was made on a day other than Sunday, and no special facts appearing to justify the issue of the same on Sunday.
24. For that it appears that the search and seizure affidavit was made and the warrant issued thereon on a Sunday, which was not authorized or directed by law, and which was illegal and void.
25. Because the warrant for seizure of the articles mentioned in the complaint or affidavit was issued by an unauthorized person and on a date not authorized by law.
The following is the judgment of the county court from which the State appealed:
This day came the State of Alabama, by its Solicitor, Jas. P. Miller, who prosecutes for the State of Alabama, and came also the defendant in his own proper person, and by attorney, whereupon the defendant files demurrers 1 to 25, said demurrers being considered by the court, the court is of the opinion that said demurrers are well taken and should be sustained.
It is, therefore, considered, ordered and adjudged by the court that said demurrers be and the same are hereby sustained.
Whereupon the State says that it does not desire to go further. Under Section 5486 [Code 1940, Tit. 15, § 115], property ordered returned to the original owner. Source: CourtListener
Court 