Adair v. State, 6 Div. 669.

• Decision Date: 04 February 1941
• Docket Number: 6 Div. 669.
• Citation: 200 So. 791,30 Ala.App. 58
• Parties: ADAIR v. STATE.
• Court: Alabama Court of Appeals

200 So. 791

30 Ala.App. 58

ADAIR v. STATE.

6 Div. 669.

Court of Appeals of Alabama

February 4, 1941

Rehearing Denied Feb. 18, 1941.

Appeal from Circuit Court, Tuscaloosa County; Tom B. Ward, Judge.

C. B Adair was convicted of violating the prohibition law, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Adair v. State, 6 Div. 830, 200 So. 793.

DeGraffenried & McDuffie, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

RICE Judge.

Appellant was regularly put upon trial in the Inferior Court of Tuscaloosa County (Local Acts Ala.1927, p. 130) upon an affidavit, the charging part of which was in the following language, to wit: "* * * C. B. Adair whose name is otherwise unknown to affiant within twelve months before making this affidavit, in said County, did buy, sell or have in possession illegally, give barter, exchange, receive, deliver, carry or ship prohibited liquors, contrary to law."

He was there convicted--the judgment of the said Inferior Court reciting: "July 31, 1939, the Defendant being duly arraigned, pleads not Guilty to Violating Prohibition Law, issue being joined on said plea; and after hearing the evidence in this case, the Court is satisfied of the guilt of the Defendant and hereby awards the following punishment: A Fine of $500.00, 180 Days hard labor as an additional punishment and the Cost of this proceedings."

Appellant regularly took an appeal to the Circuit Court, where the Solicitor filed a complaint (unnecessary) in two counts, or paragraphs, which are in the following language, to-wit:

"1. The State of Alabama, by its Solicitor, complains of C. B. Adair that, within twelve months before the commencement of this prosecution, he did sell, offer for sale, keep for sale, or otherwise dispose of spirituous, vinous or malt liquors, contrary to law.

"2. The State of Alabama, by its Solicitor, complains of C. B. Adair that, within twelve months before the commencement of this prosecution, he did have in his possession spirituous, vinous or malt liquors, contrary to law."

Upon this complaint appellant was convicted by the jury; regularly adjudged guilty, and sentenced in accordance with the statutes.

Appellant was represented throughout the proceedings below, and here, by able and astute counsel.

Said counsel, while warning us, in effect, not to overlook our duty under the terms of Code 1923, Sec. 3258, have seen fit to deal with but a single proposition in their brief filed here. And after a careful study of the record, including the bill of exceptions, we are persuaded that no question apparent other than the one dealt with in said brief is worthy of mention by us.

Unless there is merit in the contention urged upon us in the counsel's said brief, there is merit in no exception reserved on the trial.

Appellant, who admitted that he was engaged in the business of selling whiskey in Tuscaloosa County--a "Dry" County (Williams v. State, 28 Ala.App. 73, 179 So. 915)--within the time covered by the complaint on which he was tried and convicted, in utter defiance of law, seeks to avoid the judgment of conviction from which he has appealed to this court upon the following novel contention.

He says that upon the trial in the Inferior Court the testimony on behalf of the State was all and only to the effect that he was found in possession of whiskey on Saturday July 1st. And that he denied being in possession of any whiskey on this date; but admitted that he had been in possession of whiskey two days prior to this time, on Thursday. And that he had "run out" of whiskey and gone to Mississippi for thirty-five cases of same; that he was arrested in Mississippi and his whiskey taken away from him; and that he came back empty handed just prior to the hour the officers raided his place.

Then, he says, the Judge of the Inferior Court, at the time he found him guilty, remarked: "that he did not find defendant guilty of having prohibited liquor on Saturday, but that any possession of prohibited liquor was sufficient, and that he was finding him guilty of having it in his possession on Thursday before the Saturday testified about."

All the above was embodied in a pleading which appellant called a plea of former jeopardy, or autrefois acquit. It being appellant's contention, as he argues here, that because the Judge of the Inferior Court made the remark quoted above at the time of finding him guilty, he thereby acquitted appellant of the offense of having in his possession whiskey on Saturday July 1st, the one and only date to which...