Opinion
8 Div. 788.
June 20, 1939.
Appeal from Lawrence County Court; Chas. E. Bragg, Judge.
Leslie Roberson and Sol Roberson were convicted of gaming on Sunday, and they appeal.
Appeal dismissed.
The affidavits are in the following form:
"Before Chas. E. Bragg, Judge of Probate and ex-officio Judge of the County Court in and for said County and State, personally appeared M. F. Slaton, who being duly sworn, on oath says that within twelve months before making of said affidavit, in said State and County, Leslie Roberson violated the Law by Gaming on Sunday against the peace and dignity of the State.
"M. F. Slaton.
"Sworn to and subscribed before me, this 16 day of Oct. 1937.
"W. G. Houston, J. P."
Perdue Miller, of Moulton, for appellants.
The purported affidavits are void and are insufficient to sustain the judgments of conviction. Kyser v. State, 22 Ala. App. 431, 117 So. 157; Id., 217 Ala. 561, 117 So. 159; Woodham v. State, 28 Ala. App. 62, 178 So. 464; Thomas v. State, 166 Ala. 40, 52 So. 34. The Court erred in overruling the motion for a new trial. Bradford v. State, 147 Ala. 118, 41 So. 1024; 27 C.J. 973, 999, 1002, §§ 35, 132, 145; Russ v. State, 138 Ala. 1, 35 So. 107.
Thos. S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen., for the State.
The affidavits are sufficient to support a judgment. The variance between the body of the affidavit and jurat is not fatal to the validity of the affidavit. Hyde v. Adams, 80 Ala. 111. The evidence presented a question for the jury.
Each of these appellants was convicted of "gaming on Sunday." Code 1923, Sec. 5539. They were tried together; and appeal, jointly — by agreement.
With the fact that the testimony shows without dispute that some officers of the law drove out into a "negro quarter" where "no disturbance was going on — none of them drunk," — to use the officers' language — on a Sunday afternoon, and, after leaving their car some 400 or 500 yards from a negro's dwelling house, snooped back through a cornfield and "watched them (the negroes in the house) five minutes through a crack" before announcing their presence, perhaps we have nothing to do.
But there are two fatal difficulties in affirming the judgments here appealed from.
In the first place, the affidavits upon which appellants were put to trial were no affidavits at all. They each purport to be made before "Chas. E. Bragg, Judge of Probate and ex-officio Judge of the County Court." But they show on their faces that they were not. The jurat, in each case, was signed by "W. G. Houston, J. P." The affidavits were void; and served in no manner to confer jurisdiction upon the County Court of Lawrence County to try the cases. Thomas v. State, 166 Ala. 40, 52 So. 34.
It follows that the judgments of conviction were void; and that the appeals must be dismissed, and, the statute of limitations having now barred further prosecution, the appellants discharged from custody. Woodham v. State, 28 Ala. App. 62, 178 So. 464; Kyser v. State, 22 Ala. App. 431, 117 So. 157.
But if the above were not true, we find in the bill of exceptions no sufficient evidence (Ex parte Grimmett, 228 Ala. 1, 152 So. 263), even if it could be said there were a scintilla, upon which to sustain the convictions. Code 1923, Sec. 9502.
So, in any event, the appellants ought to be discharged.
The appeals are dismissed, with directions to the lower court that they be so.
Appeals dismissed.