Opinion
2 Div. 511.
November 15, 1932.
Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.
T. Y. Sherrod was convicted of violating an ordinance of the Town of York, and he appeals.
Reversed and remanded.
The complaint charges that defendant did manufacture, sell, offer for sale, etc., prohibited liquors in violation of an ordinance of the town of York, etc.
The judgment entry recites that: "Defendant pleads not guilty. Jury and verdict 'we the jury find the defendant guilty as charged in the complaint and assess a fine against him of ten dollars.' The defendant failing to pay the fine and cost or to confess judgment for the same the defendant is sentenced to work on the streets or public works of the Town for ten days to pay the fine and additional time on the streets or public works of the town to pay the costs at the rate of forty cents per day until the fine and costs are paid. And the defendant is sentenced as additional punishment by the court to work on the streets or public works of the Town for sixty days. Defendant gives notice of appeal."
Defendant moved to arrest the judgment upon the ground that the verdict was void, having been returned upon a complaint charging defendant with manufacturing whisky and with a sale of whisky in the same count, the first of which is a felony and the latter a misdemeanor.
The motion in arrest of judgment was overruled.
Geo. O. Miller, of Livingston, for appellant.
The complaint charging a felony and a misdemeanor in the same count, judgment thereon should have been arrested. Code 1923, § 1992; James v. State, 104 Ala. 20, 16 So. 94; Tennison v. State, 18 Ala. App. 159, 89 So. 826. There is no sufficient judgment of conviction in this cause. Oliver v. State, ante, p. 34, 140 So. 180. After the lapse of thirty days from the date of judgment, the court lost all power over it. Code 1923, § 6670.
Patton Patton, of Livingston, for appellee.
The attempt on the part of the town to pass an ordinance making it a misdemeanor to do what the state says is a felony is a mere nullity. If one section of a law is void and another valid, and they are not dependent on each other, a conviction under the ordinance will be referred to the valid portion. 43 C. J. 217; Ex parte Bizzell, 112 Ala. 210, 21 So. 371; Ex parte Cowert, 92 Ala. 94, 9 So. 225; Hewlett v. Camp, 115 Ala. 499. 22 So. 137. An indictment or complaint which contains alternative averments, one of which is legally insufficient. is demurrable, but, after a general verdict of guilty, it is not available even on a motion in arrest of judgment. The finding of the jury will be referred to the good count. Abrahams v. State, 18 Ala. App. 252, 89 So. 853; State v. Coleman, 5 Port. 32; May v. State, 85 Ala. 15, 5 So. 14; Glenn v. State, 60 Ala. 104; Hornsby v. State, 94 Ala. 55, 10 So. 522. The judgment of conviction is sufficient. Oliver v. State, ante, p. 34, 140 So. 180. The bench notes show sufficient record evidence to support the judgment, and the trial judge of his own motion ordered the minute entry completed, and it is now complete.
This appeal is upon the record, there being no bill of exceptions.
The purported judgment in the circuit court, from which this appeal was taken, cannot be upheld or sustained by any provision known to the law. As the record here appears, there is nothing to show how the circuit court acquired jurisdiction of the case. The complaint in the circuit court, containing one count, undertook to charge both a felony and a misdemeanor; the jury returned a general verdict of guilty as charged in the complaint, upon which verdict a so-called judgment was rendered. The motion in arrest of this judgment should have been sustained. James et al. v. State, 104 Ala. 20, 16 So. 94. The action of the court in overruling said motion is made the basis of the assignment of error, and this insistence must be sustained.
Notice of appeal was given in the court below on October 15, 1931, thereby divesting the lower court of all jurisdiction thereof; the attempt by the court to have the clerk enter a new judgment in the cause some several months thereafter, and while the cause was pending in this court, was abortive, and such action of the court transmitted here on a separate sheet of paper is no part of the record and cannot be considered. Wells v. State, 19 Ala. App. 404, 97 So. 681; Oliver v. State, ante, p. 34, 140 So. 180.
The Judgment appealed from is reversed, and the cause remanded.
Reversed and remanded.