I am concurring in the conclusion reached by the PRESIDING JUDGE for the following reasons: Where the bill of exceptions fails to disclose any evidence as to time or venue, circuit court rule 35 obtains, and the trial court will not be put in error for a refusal to give at the request of defendant the general charge unless the point is brought to the attention of the trial judge. This point has many times been decided by this court and the Supreme Court. Green v. State, 22 Ala. App. 536,117 So. 607; Houk v. State, 21 Ala. App. 111,105 So. 425; Harris v. State, 21 Ala. App. 67, 105 So. 389; McGrew v. State, 21 Ala. App. 266, 107 So. 328; Ray v. State,25 Ala. App. 262, 145 So. 325; Webb v. State, 19 Ala. App. 359,97 So. 246; McGee v. State, 20 Ala. App. 221,101 So. 321; Morgan v. State, 20 Ala. App. 346, 102 So. 462.
In the instant case a very different proposition is presented. Here the evidence is without dispute that the difficulty resulting in the indictment for assault to murder occurred some two years before the beginning of the prosecution. This fact rendered the charge of assault and battery, included in the indictment charging assault to murder, a nonpunishable offense, and no court was authorized to pronounce judgment against the person who committed it. McDowell v. State, 61 Ala. 172, 174. While the time is not required to be stated in haec verba in the indictment, the charge is inferentially there as much so as if it had been so written, and because it is one of the material averments to be proven before a conviction may be had, and, when it affirmatively appears that the offense charged was committed beyond the time limit as fixed by the statute, the trial court was without jurisdiction to pronounce judgment; the act charged having ceased to be a punishable offense. McDowell's Case, supra.
The point is not raised by a request for the affirmative charge as to the offense charged in the indictment, and therefore error cannot and is not predicated on the court's refusal to give such charge in this case. Letcher's Case,159 Ala. 59, 48 So. 805, 17 Ann. Cas. 716. *Page 378
But, being a case where the trial court has no authority or power to pronounce judgment by reason of its lack of jurisdiction over the subject-matter, the question may not be waived and may be raised at any time. 16 Corpus Juris, 184 (256). Not for error in refusing the general charge as to the charge in the indictment, nor for other rulings insisted upon as error during the trial, but because the court had no power to pronounce judgment on the verdict for assault and battery, the judgment is held to be void and of no effect.