Barefield v. State

Decision Date15 June 1916
Docket Number4 Div. 411
Citation14 Ala.App. 638,72 So. 293
PartiesBAREFIELD v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Henry County; M. Sollie, Judge.

Luther Barefield was convicted of a liquor violation, and appeals. Affirmed.

The indictment in this case was returned at the September term 1914, of the circuit court of Henry county, and is in the form prescribed by the statute, charging:

"That the defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, contrary to law."

On the trial the state offered one Chancey, who testified that witness and Lonnie Riley bought one pint of whisky from the defendant at "Bonzie Snell's house," when Ab Infinger and John Brannon were present, and paid him 75 cents therefor. Riley was offered by the state and testified to the fact of the same sale. On cross-examination of these witnesses, the defendant brought out the fact that these witnesses were not before the grand jury at the September term of the court, 1914, when the indictment was found. The state then offered John Brannon, who testified to the fact of the sale by the defendant to Chancey and Riley, and on cross-examination of this witness it was shown that he was before the grand jury that returned the indictment, but was not asked about and did not mention the sale to Chancey and Riley, but told the grand jury about another transaction when he (Brannon) bought some whisky from defendant. On redirect examination of this witness, the court allowed the state over the defendant's objection that the state, by offering proof of a sale to Chancey and Riley, had elected to prosecute for that act and that evidence of a different transaction was not admissible, to prove that on the same occasion and before Chancey and Riley drove up to the place defendant sold witness a quart of whisky and witness paid him $1 for it; that this is the transaction that witness detailed to the grand jury. The only other witness examined was Arizona Brannon, who testified that he was not before the grand jury; that the quart of liquor was sold to his father and he drank part of it; that he did not relate the fact of the sale to Chancey and Riley.

The affirmative charge was requested by the defendant and refused by the court. The jury returned a verdict finding the defendant guilty of keeping liquors for sale contrary to law.

The appellant renews his contentions here: (1) That the state, by proving a completed transaction and sale to Chancey and Riley, elected to prosecute for that offense, and therefore the court committed reversible error in allowing the state over his objection, to offer proof of the sale to Brannon; (2) that thus having elected, and the undisputed evidence showing that no evidence was offered before the grand jury of the first sale proven on this trial, the defendant cannot be convicted for that offense, and therefore he was entitled to the affirmative charge.

H.L. Martin, of Ozark, for appellant.

W.L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

BROWN J.

On trial under an indictment which charges in the alternative several offenses in the same count, the state will not be held to have elected by the mere introduction of evidence which sustains one or more of the several charges. Carleton v. State, 100 Ala. 131, 14 So. 472; Untreinor v. State, 146 Ala. 133, 41 So. 170. The indictment not only charges an unlawful sale, but charges in the alternative that the defendant sold, kept for sale, or otherwise disposed of prohibited liquors, and covers any manner of disposition by which such prohibited liquors and beverages may pass unlawfully from one person to another. Bush v. State, 12 Ala.App. 260, 67 So. 847; Arrington v. State, 69 So. 385, affirmed by Supreme Court 70 So. 1012. In such cases, it is permissible for the prosecution to offer evidence of several distinct sales by the defendant as tending to support the charge of keeping for sale, which is in its nature a continuing act. Howle v. State, 1 Ala.App. 228, 56 So. 37; Untreinor v. State, supra; Spigener v. State, 11 Ala.App. 296, 66 So. 886; Snider v. State. 59 Ala. 64.

If an election could be required at all, a motion to that end was necessary and was not appropriate until all the evidence for the state had been offered. Moss v. State, 3 Ala.App. 189, 58 So. 62; Carleton v. State, supra. The reasoning in Carleton v. State, supra, is here appropriate:

"The very purpose of framing the indictment with two or more counts was to prevent the application of the doctrine of election. When there is but one count charging a single offense, the law presumes the defendant comes to trial prepared to meet the single charge, and the prosecution will not be permitted, after once having elected, to introduce evidence of another and different offense; but where the indictment charges that the offense was committed by different means, or with different intents, in the alternative, or where the offenses are of that character which may be joined in the same indictment, in different counts, the defendant is fully informed of the cause of the prosecution, and the doctrine of election does not apply until there has been an election by the prosecution under each alternative charge, or separate court."

To hold that an election is effected by the state offering evidence which particularizes and individualizes a single transaction as constituting an offense within the indictment, as was uniformly held before the enactment of the statute prescribing the form and scope of indictments in such cases, and allowing more than one offense to be charged in the alternative in the same count (Elam v. State, 26 Ala. 48; Cochran v. State, 30 Ala. 542; Hughes v. State, 35 Ala. 361; Ingram v. State, 39 Ala. 251, 84 Am.Dec. 782; Seibert v. State, 40 Ala. 63; Peacher v. State, 61 Ala. 23; McCullough v. State, 63 Ala. 79; Williams v. State, 77 Ala. 55; O'Brien v. State, 91 Ala. 28, 8 So. 560; Jackson v. State, 95 Ala. 17, 10 So. 657; Untreinor v. State, 146 Ala. 133, 41 So. 170), would be to emasculate the statute under which the indictment was drawn and destroy its wholesome purpose--to strike down mere technicalities availed of by offenders against the laws of the state designed to suppress the evils of intemperance as vehicles of escape from punishment, including the technical doctrine of election--as evidenced by its title and entire context, and especially by the following provision of section 29 1/2 prescribing the form and scope of the indictment:

"And in an indictment, complaint, or affidavit, for selling, offering for sale, keeping for sale, or otherwise disposing of prohibited liquors and beverages, it is sufficient to charge that the defendant sold, offered for sale, kept of sale, or otherwise disposed of prohibited liquors and beverages, and on the trial under such charge in either form any act of selling in violation of law embraced in the charge may be proved, and the charge in each of said forms shall be held to include any device or substitute for any of said liquors. In any indictment, complaint, information, or affidavit charging that prohibited liquors and beverages have been manufactured, sold, offered for sale, kept for sale, or otherwise disposed of, it shall not be necessary to set out the kind or quantity of the prohibited liquors and beverages, nor the person to whom such sale, offer to sale, or other disposition was made, and in any prosecution for a second or subsequent offense it shall not be requisite to set forth in the indictment, information, complaint, or affidavit the record of a former conviction, but it shall be sufficient to briefly allege such conviction." Acts Spec.Sess. 1909, p. 90 § 29 1/2.

And the following provision:

"And the term 'otherwise disposed of' following the words, 'sell, offer for sale, or keep for sale,' and the term 'otherwise disposed of' following the words 'sold, offered for sale, kept for sale,' when employed in any warrant, process, affidavit, indictment, information, or complaint, *** shall include and be deemed to include barter, exchange, giving away, furnishing, or any manner of disposition by which said liquors and beverages may pass unlawfully from one person to another; and the term person or the term party when employed alone in this act shall include a firm, corporation, or association of persons." Acts Spec.Sess. 1909, p. 91 § 31.

See Bush v. State, supra; Arrington v. State, supra; Allison v. State, 1 Ala.App. 206, 55 So. 453; Spigener v. State, supra; Fletcher v. State, 12 Ala.App. 216, 67 So. 631.

The indictment not only charges a sale in violation of law, but it charges a keeping for sale, which not only involves the fact of keeping, but the intent. In passing on an analogous proposition, the Supreme Court, in Snider v. State, supra, said:

"The particular offense we are considering is 'keeping open store' on the Sabbath. A sale, or sales, made on that day, are but evidence to consummate the offense. They are ingredients, but not the statutory misdemeanor the Legislature intended to repress. We do not think the doctrine of election applies to these mere evidences of the intent of one charged with keeping open store on the Sabbath." Snider v. State, 59 Ala. 64.

If the contention of appellant that the defendant cannot be convicted for the sale to Chancey and Riley because the undisputed evidence shows that it is not an offense covered by the indictment on the authority of Lee v. State, 147 Ala. 135, 41 So. 677, is correct, this answers his contention that an election was effected by proof of this particular sale. If, in fact, this sale was not an offense covered by the indictment, the state, by making proof of such sale, did not elect and could...

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11 cases
  • Chancellor v. State
    • United States
    • Alabama Court of Appeals
    • 23 Noviembre 1954
    ...relating to the circumstances of the second occurrence. The following authorities treat the doctrine of election. Barefield v. State, 14 Ala.App. 638, 72 So. 293; Skinner v. State, 36 Ala.App. 434, 60 So.2d 363; Breeding v. Commonwealth, 191 Ky. 128, 229 S.W. 372; State v. Hamilton, 263 Mo.......
  • Fason v. State
    • United States
    • Alabama Court of Appeals
    • 15 Enero 1924
    ...and the state may be required to elect for which treatment it prosecutes. Frazier v. State (Ala. App.) 97 So. 251; Barefield v. State, 14 Ala. App. 638, 72 So. 293. may be that evidence of more than one treatment of the same or other persons might be admissible if limited to the purpose of ......
  • Denham v. State
    • United States
    • Alabama Court of Appeals
    • 19 Abril 1921
    ... ... No ... error appears in the record. The judgment of the circuit ... court is affirmed ... Affirmed ... On ... Rehearing ... PER ... Application ... for rehearing overruled. Howze v. State, 16 Ala.App ... 76, 75 So. 624; Barefield v. State, 14 Ala.App. 638, ... 72 So. 293; Howle v. State, 1 Ala.App. 228, 56 So ... 37; Sellers v. State, 98 Ala. 72, 13 So. 530; ... McIntosh v. State, 140 Ala. 137, 37 So. 223; ... Untreinor v. State, ... [90 So. 131.] ... 146 Ala. 133, To view preceding link please click here ... 41 ... ...
  • Moragne v. State
    • United States
    • Alabama Court of Appeals
    • 23 Marzo 1917
    ... ... 467 ... Whether ... the evidence in the case justified the defendant's ... conviction on more than one count is a question not presented ... on the record. Woodson v. State, 170 Ala. 87, 54 So ... 191; Trent v. State, 73 So. 834; Addington v ... State, 74 So. 846; Barefield v. State, 72 So ... No ... error appearing upon the record, the judgment must be ... affirmed ... ...
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