Whitaker v. State
| Decision Date | 30 June 1925 |
| Docket Number | 8 Div. 178 |
| Citation | 21 Ala.App. 114,105 So. 433 |
| Parties | WHITAKER v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Aug. 11, 1925
Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.
Joe Bill Whitaker was convicted of violating the Prohibition Law and he appeals. Affirmed.
John A Lusk, of Guntersville, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
From a judgment of conviction in the circuit court of Marshall county on October 18, 1923, this appeal was taken; the certificate of appeal being here filed on December 31, 1923. The transcript was filed with the clerk of this court on June 19, 1924, and the cause was "submitted on briefs" January 22, 1925. On April 7, 1925, this court handed down a decision (through Samford, J.), affirming the judgment of conviction appealed from. Upon motion of appellant the opinion was withdrawn and the affirmance set aside and cause restored to docket on April 9, 1925. On May 21, 1925, the cause was argued orally to the court by counsel for appellant, and was duly submitted on that date.
We have given further consideration to the questions presented on this appeal, and, as the points of decision are the same as when originally submitted, we again adopt the subjoined opinion prepared by Samford, J., as the decision of this court, being of the opinion that the decision referred to covers all questions raised on this appeal, and is correct as to the conclusion reached and the reasons therefor.
Defendant was arrested on a warrant issued out of the county court of Marshall county on an affidavit charging a violation of the prohibition law. While this cause was pending in the county court the grand jury of Marshall county returned an indictment against the defendant charging the same offense and based upon the same state of facts. After the return of this indictment into the circuit court, the solicitor representing the state appeared in the county court, and over the protest and objection of defendant dismissed the case there pending, which dismissal was duly entered by the judge of the county court on the 5th day of March, 1923. When this cause came on to be heard on October 18, 1923, defendant filed a plea in abatement alleging the pendency of the prior prosecution in the county court. On the trial of this issue it was made to appear that the case in the county court had been dismissed as hereinabove stated. This appearing without conflict, the court, at the request of the state, in writing, instructed the jury to find the issue for the state. Of course, if the charge had still been pending in the county court the plea would have been good. Bachelor v. State, 16 Ala.App. 665, 81 So. 185. The solicitor is the representative of the state in all criminal prosecutions within his jurisdiction, and he may, with the consent of the court, enter a nol. pros. in any pending criminal case. 4 Mich.Dig. 113, par. 177(2). When a nol. pros. is entered before the defendant has been placed in jeopardy, its only effect is to end that particular prosecution, and does not absolve defendant from liability to further prosecution for the same offense. Walker v. State, 61 Ala. 30; O'Brien v. State, 91 Ala. 25, 8 So. 560. The court properly gave the general charge for the state on the plea in abatement.
No ruling is shown upon the demurrers, nor is there exception to the failure of the trial court to pass upon demurrers to the indictment; this being true, nothing is here presented in this connection. Without some ruling of the court on a question presented there is nothing to review.
Where there is a plea in abatement the defendant is entitled to and in this case had, a...
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Vogel v. State
...this was in the defendant's possession at the same time, there was only one possession.' " Similarly, in the case of Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925), the fact of possession was discussed in the context of liquor "Under the state's evidence, the first whisky found was ......
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Smith v. State
...possession at the same time, there was only one possession.' " Vogel v. State, supra. Further, in the case of Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925), the Court "Whether the whisky was in one place or a dozen places, if the possession was in the defendant and at the same time......
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...possession of controlled substances case and should have only received one sentence, and opined: “[I]n the case of Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925), the Court stated: “ ‘Whether the whisky was in one place or a dozen places, if the possession was in the defendant and a......
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...case is nolle prossed before jeopardy attaches, further prosecution may be had for that same offense. Elmore, supra; Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973). Numerous cases have held that a person is not placed in double j......