Summary
In Richardson v. State, 215 Ala. 318, III So. 204, the court held that it was essential in order to sustain a conviction that the offense must have been committed before the prosecution was begun and held that the affidavit instituting the prosecution is the best evidence of the date when the prosecution commenced.
Summary of this case from The People v. WrightOpinion
1 Div. 427.
December 2, 1926.
Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
The affidavit was admissible in evidence for the purpose of showing the time the offense was committed, the time the prosecution was begun, and that same was begun within twelve months after commission of the offense. Wynne v. State, 155 Ala. 99, 46 So. 459; Thomas v. State, 19 Ala. App. 187, 96 So. 182; Ex parte Thomas, 209 Ala. 289, 96 So. 184.
Hybart Hare, of Monroeville, opposed.
Brief of counsel did not reach the Reporter.
A criminal prosecution covers offenses only which were committed before prosecution begun and within the statutory period of limitation. Two questions of time are involved: (a) When was the offense committed? (b) When was the prosecution begun? The burden is on the state as to both.
The witnesses fix the time of the offense in their testimony. Where, as here, the evidence shows without conflict the offense was committed, if at all, some three months before the trial on appeal in the circuit court, this is sufficient to show the offense was not barred when the prosecution was begun in the county court.
But it does not go to the point that the offense given in evidence was committed before the prosecution was begun in the county court. Of this fact, the affidavit instituting the prosecution in the county court, or the certified transcript thereof, sent up under Code, § 3839, is the best evidence.
For the purpose of suspending the running of the statute of limitation, the prosecution is begun by the issuance of the warrant, Code, § 4934. But the warrant is based on the affidavit, and could not cover offenses subsequent to the affidavit. In the nature of the case, the prosecution must pertain to offenses committed before the affidavit is made.
The trial court was not in error in admitting the affidavit in the county court for the limited purpose of showing when the prosecution was begun. The Court of Appeals erred in so holding.
The writ of certiorari is granted, judgment of reversal vacated, and the cause remanded to the Court of Appeals.
Writ granted. Reversed and remanded.
All the Justices concur.