The defendant was convicted under an indictment which contained two counts. The first count charged that he did distill, make, or manufacture alcoholic, spirituous, malted or mixed liquors since January 25, 1919, and the second count Charged that he did, after September 30, 1919, manufacture, sell, give away, or have in possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages. He was sentenced to the penitentiary for a term of not less than two nor more than three years. There were no demurrers interposed to either count of the indictment.
The second count of the indictment should have alleged that the defendant did, after November 30, 1919, possess a still, etc., as the law was approved on September 30, 1919, but did not go into effect until 60 days thereafter. This count charged the defendant with an act which was not a crime under the law during some period of the time covered by the indictment, and was therefore, defective. Howard v. State, 17 Ala. App. 464,86 So. 172; McReynolds v. State (Ala.App.) 89 So. 825;1 Stephen Isbell v. State (Ala.App.) 90 So. 55.2 The jury returned a general verdict, finding the defendant guilty as charged in the indictment, and, the first being a good count, the verdict would be referred to that count, in the absence of demurer or other pleading which questions the sufficiency of the defective count. Fairo v. State, 49 Ala. 25; May v. State85 Ala. 14, 5 So. 14; Hornsby v. State, 94 Ala. 55, 10 So. 522; 1 Mayfield's Digest, p. 451; Glenn v. State, 158 Ala. 44,48 So. 505. Count 2 of the indictment was subject to demurrer, but none was interposed, and we know of no rule of pleading whereby a general affirmative charge, which is predicated on the evidence in the case, can perform the office of a demurrer; that is, question the sufficiency of the indictment.
This case is distinguishable from the Cagle Case, 151 Ala. 84, 44 south. 381, and Isbell's Case (Ala.App.) 90 So. 55,2 in that there was no good count in either of these case, and nothing but a count which would not support a conviction, while in the case at bar there was a good count. Moreover, in the case at bar, the evidence shows without conflict that the time the defendant is alleged to have had the possession of the still was at a time when it was a violation of the law, and was not at the a time when it was not a violation; hence on these facts the affirmative charge, which, as stated before, was predicated on the evidence, was properly refused. This would seem to distinguish it from Shelton's Case, 143 Ala. 98,39 So. 377.
There was a good count and a defective count in the indictment, no demurrers were interposed, the defendant pleaded not guilty, a general verdict was returned, and the defendant rests his claim here to question the sufficiency of the defective count on the affirmative charge requested by him and refused by the court as to such count. As stated before, in the opinion of the writer, the defect complained of is not available on the request for the affirmative instruction, and, if available to raise the sufficiency of the count in question, it is unavailing in this case, for the reason that there was a general verdict on an indictment with a good and bad count, and, such being the case, the finding of the jury will be upheld by the good count, and for the further reason that the defendant could not have been injuriously affected by the verdict, for that the testimony shows without conflict that the possession of the still was at a time when it was a violation of the law. Hornsby v. State, 94 Ala. 55, 10 So. 522; Burdine v. State, 25 Ala. 60; Barber v. State, 78 Ala. 19; Cunningham v. State, 15 Ala. App. 644, 74 So. 747; State v. Coleman (Ala.) 5 Port. 32; Taylor v. State, 100 Ala. 68. 14 So. 875; Rule 45, Supreme Court, 175 Ala. xxi, 61 So. ix; Harrison v. State, 13 Ala. App. 354, 69 So. 383.
Contention is made that the trial court committed reversible error in refusing to give the general affirmative charge requested by the defendant on account of a failure to prove venue. The trial court will not be put in error on this account; it not appearing that this fact was called to the attention of the trial court. Rule 35, Supreme Court Rules, 175 Ala. xxi.
A majority of the court do not concur in this opinion, as is shown by the following opinion of:
1 Ante, p. 173.
2 Ante, p. 223.