Opinion
4 Div. 937.
November 29, 1932.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Grady Wise was convicted of violating the game law, and he appeals.
Reversed and rendered.
See, also, 24 Ala. App. 538, 137 So. 679.
E. W. Norton, of Clayton, for appellant.
The allegations of the indictment that defendant did have quail in his possession for more than five days after the close of the season for killing same are not sufficient to charge a violation under section 4196 of the Code of 1923, in that it is not alleged that such quail were killed prior to the close of the season. But, even if sufficient, the state failed to prove same, the proof showing without dispute that defendant had quail in his possession only one day. In the construction of statutes, it is legitimate to take into consideration the history leading up to the enactment. Prowell v. State, 142 Ala. 80, 39 So. 164; State v. Board of Rev., 201 Ala. 568, 78 So. 964; McCreless v. Tenn. Valley Bank, 208 Ala. 414, 94 So. 722; Davis v. State, 16 Ala. App. 397, 78 So. 313. No penalty is provided for violation of section 4188 of the Code. In the light of its history, section 4196 must be interpreted as intending to allow persons who had killed quail during the open season five days in which to dispose of them. Otherwise construed there would be a conflict between sections 4188 and 4196, and the court will not adopt a construction which would institute such conflict. Blumberg Shoe Co. v. Phoenix Assur. Co., 203 Ala. 551, 84 So. 763. The statute, section 4196, is not subject to be construed as meaning at a period or on a date more than five days after the close of the season. Code 1923, § 4530; Ex parte Pepper, 185 Ala. 284, 64 So. 112; Blake v. State, 178 Ala. 407, 59 So. 623; Edwards v. Doster-Northington Drug Co., 214 Ala. 640, 108 So. 862: State ex rel. v. Lane, 181 Ala. 646, 62 So. 31; 26 C. J. 791.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The indictment, substantially in the language of the statute, was not subject to demurrer. 16 Alabama Southern Digest, "Indictment and Information," 110 (3). The offense denounced is having such birds in possession, and it was not necessary to allege that the quail in defendant's possession were quail killed prior to the close of the season. Code. 1923, § 4196. The purpose of section 4188 is to provide a definition for open and closed seasons. Sections 4188 and 4196 are to be construed together. Although penal statutes are to be strictly construed, they must not be so strictly construed as to defeat the obvious intention of the Legislature. Preist v. State, 5 Ala. App. 171, 59 So. 318; Walton v. State, 62 Ala. 197. Section 4196 covers not only quail killed during the open season, but also quail killed out of season. The five-day period is for the protection of those who possess quail killed during the open season. The language of the statute does not mean the possession must be for five full days; such possession may be only momentary at any time five days after the close of the season.
In this case, as in all criminal prosecutions, the accused was called upon to answer only the charge contained in the indictment, which in this case charged that he "did have quail in his possession for more than five days after the close of the season for killing same."
We are here called upon for an interpretation of the language used in the indictment, which follows the language of the statute (Code 1923, § 4196). In thus deciding this question, we are not at liberty to add to, or take from, change, or alter, the allegations of the indictment or the statute upon which it is based, which statute must be given a strict construction. We are clear of the opinion that the words "for more than five days" means for a longer time than five days, and, this being true, the prosecution in this case must fall under the undisputed evidence adduced upon the trial in the court below which tended to show only that the defendant had possession of one quail for one day or a part of a day only. At the conclusion of the state's case, the defendant moved the court to exclude the evidence upon the grounds: (1) "The State had failed by its testimony to make out a case against the defendant under count two of the indictment," upon which count he was put to trial; and, (2) the state by its evidence had failed to prove the allegations of count two of the indictment. The foregoing motion should have been sustained under the undisputed evidence in this case, and in overruling the motion the court erred to a reversal. The court likewise committed error in giving the affirmative charge for the state.
Numerous other insistences of error are presented, but need not be discussed, as what has been said is conclusive of this appeal.
As the statute (Code 1923, § 6149) provides, we here render a judgment that the court below should have rendered, and the defendant is hereby discharged from further proceedings in this case.
The judgment of conviction from which this appeal was taken is reversed, and the defendant discharged.
Reversed and rendered.