Opinion
No. 26,716.
Filed February 2, 1937.
CRIMINAL LAW — Appeal — Review — Questions Reviewable — Applicability to Issues. — Where accused was convicted of selling intoxicating liquors without a permit under an Act of 1935, no question was presented on appeal by claim that the affidavit upon which he was tried was insufficient under an Act of 1933 which had been expressly repealed by the later act before the offense was committed.
From Delaware Circuit Court; Leonidas A. Guthrie, Judge.
George Van Devender was convicted of selling alcoholic beverages without a permit, and he appealed. Affirmed.
Gene Williams, for appellant. Philip Lutz, Jr., Attorney-General, and Thomas Longfellow, Deputy Attorney-General, for the State.
Appellant was charged by affidavit with the crime of selling alcoholic beverages without a permit. Appellant filed a motion to quash which was overruled. A plea of not guilty and a jury trial was had and a verdict of guilty was returned. Judgment was entered on the verdict and appellant appeals assigning as his only error, the overruling of his motion to quash. The grounds set out in his motion to quash are: (1) the affidavit does not state sufficient facts to constitute a public offense; and (2) that the offense is not stated with sufficient certainty.
Appellant's position is founded upon the supposition that the prosecution is based upon § 31, Chapter 80, of the Acts of 1933 (§ 3753 Baldwin's 1934), and his propositions, points and authorities as stated are based upon said section. The record shows that the offense was committed on July 14, 1935, and the affidavit herein was filed on July 15, 1935. Chapter 226, Acts 1935, was passed and approved on March 11, 1935, and said act contained an emergency clause which had the effect of making said act effective upon its passage and approval. This act, by § 43 (§ 3764-43 Baldwin's Supp. 1935), specifically repealed the Act of 1933 under which appellant contends the prosecution was based. Therefore the Act of 1933, upon which appellant assumes he was prosecuted and convicted, was not in existence at the time the alleged offense was committed. It is clear that the affidavit was drawn under Cl. 5, § 31, of Chapter 226, of the Acts of 1935 (§ 3764-31 Baldwin's Supp. 1935). Appellant makes no contention that the affidavit is not sufficient under this statute. Therefore appellant presents no question for our consideration.
Judgment affirmed.