Benton v. State, 7 Div. 757.
| Decision Date | 04 August 1931 |
| Docket Number | 7 Div. 757. |
| Parties | BENTON v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.
G. V Benton was convicted of transporting prohibited liquors in quantities of five gallons or more, and he appeals.
Reversed and remanded.
Windham & Countryman, of Birmingham, for appellant.
Thos E. Knight, Jr., Atty. Gen., for the State.
The appellant in this case was indicted by his initials only; and there was no allegation to the effect that his Christian name was unknown to the grand jury. The indictment, therefore, was subject to a plea of misnomer, for the law is that an indictment which sets forth the defendant's Christian name by initials, only, is subject to a plea in abatement unless it is alleged that the Christian name was unknown to the grand jury otherwise than as laid in the indictment. Du Bose v. State, 19 Ala. App. 630, 99 So. 746, and cases therein cited.
However, in the case at bar, the defendant failed to avail himself of this privilege or legal right; and as jurisdiction of the person may be conferred by consent, his failure to file such plea must be construed here, as far as this trial is concerned, as his having consented that he be tried upon the indictment as framed. The question cannot for the first time be presented upon appeal.
The offense charged was that "he did, within the State of Alabama, transport, in quantities of five gallons or more, liquors or beverages, the sale, possession or transportation of which is now prohibited by law in Alabama." Counts 2 and 3 were of the same import. In count 4, it was charged that "he did within the State of Alabama, transport, in quantities of five gallons or more, alcoholic, spirituous, vinous, or malt liquors, the sale, possession, or transportation of which is now prohibited by law in Alabama," etc.
Necessary to a conviction under this indictment, the burden rested upon the state to prove, under the usual measure of proof in criminal cases, that is to say, beyond a reasonable doubt that the "liquor" alleged to have been transported is one or the other of the designated liquors contained in count 4 of the indictment, all of which this court judicially knows are prohibited liquors or beverages; or, the state must show by its proof, as charged in the other counts of the indictment, that the "liquor" in question comes within the purview of the...
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Levert v. State
...42 So.2d 525 34 Ala.App. 523 LEVERT v. STATE. 6 Div. 496.Alabama Court of AppealsJune 29, 1948 ... Rehearing ... appeal. Benton v. State, 24 Ala.App. 441, 136 So ... 428; Bryant v. State, 28 Ala.App ... Court Rule 45, Code 1940, Tit. 7 Appendix, and that its exact ... terminology was that we should not base ... ...
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McKinnon v. State
...264, 158 So. 198; Hughes v. State, 22 Ala.App. 344, 115 So. 697. The cases cited by appellant's counsel, to wit, Benton v. State, 24 Ala.App. 441, 136 So. 428, and others, differ from the case at bar, in that the indictment in those cases did not contain the allegation, 'whose name is to th......
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McKinnon v. State
...Ala.App. 264, 158 So. 198; Hughes v. State, 22 Ala.App. 344, 115 So. 697. The cases cited by appellant's counsel, to wit, Benton v. State, 24 Ala.App. 441, 136 So. 428, and others, differ from the case at bar, in that the indictment in those cases did not contain the allegation, 'whose name......
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Sawyer v. State, 1 Div. 199
... ... grounds, some of which, notably ground 7, was well taken, ... therefore the court's action in this connection must be ... sustained ... State, 22 Ala.App. 344, 115 So. 697. The cases cited by ... appellant's counsel, to wit, Benton v. State, 24 ... Ala.App. 441, 136 So. 428, and others, differ from the case ... at bar, in that ... ...