Sizemore v. State
| Decision Date | 09 September 1969 |
| Docket Number | 8 Div. 200 |
| Citation | 226 So.2d 669,45 Ala.App. 126 |
| Parties | George Kelly SIZEMORE, alias v. STATE. |
| Court | Alabama Court of Appeals |
J. N. Powell, Jr., Decatur, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
Sizemore was convicted in the Morgan County Court which has jurisdiction of all misdemeanors in said County. He was sentenced to two years in the county jail as a second offender.
The offense for which he was indicted was described by the Grand Jury as:
'* * * having been previously convicted under Section 258 of Title 22 of Code of Alabama 1940, as last amended, did unlawfully possess an amphetamine or other stimulating drug, which said drug was not obtained on the prescription of a practitioner as defined in Title 22, Section 258, Code of Alabama 1940, as last amended, or in accordance with Section 258 of Title 22 of Code of Alabama 1940, as last amended, against the peace and dignity of the State of Alabama.'
At the outset, it is to be noted that the offense of possessing amphetamine has never been assimilated by our law makers into the Code. The above references to § 258 of T. 22 refer to portions of the Code of 1940 relating to marijuana. The statute directed against the possession, etc., of amphetamines is contained in Act 189, approved September 15, 1961. 1 Michie Publishing Company, in making up the so-called Revised Code of 1958, has undertaken to compress this statute into its pocket part supplement which appears therein as §§ 258(13)-258(20) of Title 22.
Prima facie the published statutes are accepted as evidence of what can be found in the Secretary of State's office. For this reason, the attempt to punish Sizemore as a second offender must fail because the indictment against him alleges, in effect, that he had previously been convicted of selling marijuana. Under § 8 of Act 189, approved September 15, 1961, a marijuana conviction is completely irrelevant to his punishment for violation of the amphetamine law.
A more serious question, however, arises under § 3 of said Act 189, which provides in Subsection (4) that possession of the drug obtained on a prescription is not an offense. Unfortunately, the draftsman of this statute seems to have been unfamiliar with the rule which is more than 110 years old in this jurisdiction, to the effect that if the exception in defining a crime is set forth in the enacting clause, then it becomes necessary for the...
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Warren v. State
...record clearly shows that he was qualified by the prosecution prior to his testimony. Appellant refers this court to Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669, and argues that this case requires the state to prove, as a part of its case, that appellant was not entitled to dispense m......
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Knox v. State, 8 Div. 245
...itself of the proviso. Had this been an exception the State would have had to negative the existence of a prescription. Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669. Thus, in People v. Devinny, 227 N.Y. 397, 125 N.E. 543, we 'The general rule is that in dealing with a statutory crime e......
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Hall v. State
...stimulant within the statutory language of Section 5(c), Act 252, supra. Dorgan v. State, 29 Ala.App. 362, 196 So. 160; Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669. In the case of Clark v. State, 19 Ala. 552, 554, the Supreme Court 'It is contended that the indictment is defective bec......
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Watkins v. State
...evidence, both of which were overruled by the court and exceptions reserved by appellant. Appellant cites and relies on Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669, and Dorgan v. State, 29 Ala.App. 362, 196 So. 160, in support of his contention. Sizemore, supra, is not apt as an autho......