Brasher v. State
| Decision Date | 19 April 1927 |
| Docket Number | 7 Div. 261 |
| Parties | BRASHER v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.
Sam Brasher was convicted of possessing prohibited liquor, and he appeals. Reversed and remanded.
Leeper Wallace & Saxon, of Columbiana, for appellant.
Charlie C. McCall, Asst. Atty., for the State.
On appeal from conviction in the county court, and where the solicitor files a complaint in the circuit court, such complaint in its material allegations should be based upon and confined to, the material allegations or charge in the original complaint or affidavit; otherwise there is a departure from the original accusation and charge upon which the state elected to proceed, and upon which the defendant was originally called upon to defend, and a departure of this character is not allowable. While the law provides that the case is to be tried de novo in the circuit court, yet the defendant cannot be tried for any other offense than the original offense instituted against him. More than this, he cannot be called upon or expected to answer, or be prepared to meet. This is but the "due process of law" contemplated and provided in the Constitution of the state. Constitution of 1901, art. 1, § 6, provides that in all criminal prosecutions the accused shall not be deprived of life, liberty or property, except by due process of law. On the question of departure see Echols v. State, 16 Ala.App. 138, 75 So. 814; Denham v. State, 17 Ala.App. 402, 86 So. 163; Broglan v. State, 17 Ala.App. 403, 86 So. 164; Wilson v. State, 18 Ala.App. 375, 92 So. 508; Miles v. State, 94 Ala 106, 11 So. 403.
In the instant case we think the solicitor was without authority to add to the second count of the complaint the new and additional averment, viz. "That this defendant has been convicted before for a violation of the same law." The force and effect of this additional averment, one not contained in the original affidavit or complaint, was to introduce into the case an element which did not appear in the county court, and was a clear departure. Its effect also was to change the charge or accusation from a simple one to an aggravated offense; the simple offense originally charged not necessarily calling for a sentence to hard labor as additional punishment in the event of conviction; and the other, in case of conviction, making it mandatory under the law that additional punishment at hard labor be imposed. When the defendant, over his objection, was forced to plead to the second count containing this new and additional averment, issue was therefore joined and forced upon him, one that he could in no manner be prepared to meet. To illustrate: Suppose upon the trial of this issue in the circuit court it was insisted that some other person by the same name of the defendant was the one who was formerly convicted and not this defendant. In the absence of notice that this additional accusation would be made, could the accused be presumed to be ready to meet this issue by having the necessary witnesses present? For these and for other reasons the objection and motions of the defendant to the complaint containing this averment should have been sustained, and there was error in the rulings of the court in this connection.
We note from the record that, as a result of the adverse rulings of the court above enumerated, the defendant's counsel moved the court to withdraw the case from the jury and declare a mistrial, and to the effort upon the part of counsel to protect their client, the solicitor addressed the court in the...
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Sprinkle v. State
...due consideration, Campbell, supra, and should not take advantage of his position to abuse, insult, or ridicule them. Brasher v. State, 22 Ala.App. 79, 112 So. 535 (1927). "On the other hand, a prosecuting attorney may use every legal means within his power to test the credibility of witnes......
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Ex Parte Craig
...they contain the same subject matter in the same language. The court could enter no other order under the notice. Brasher v. State, 22 Ala.App. 79, 112 So. 535. Our courts, state and federal, with practical unanimity, have long accepted the definition of "due process of law" as formulated b......
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Hall v. State, 6 Div. 720.
...by its several rulings. They were highly improper, and the rulings complained of constituted error to a reversal. In Brasher v. State, 22 Ala. App. 79, 112 So. 535, 536, this court said: "Derogation of an adverse witness the evidence given by him should not be attempted or indulged by resor......
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Horn v. State
... ... guilty of that offense. Jones v. State, 16 Ala.App ... 477, 79 So. 151. The cases of Elliott v. State, 26 ... Ala. 78; McGehee v. State, 58 Ala. 360; Thomas ... v. State, 111 Ala. 51, 20 So. 617; Towsend v ... State, 137 Ala. 91, 34 So. 382; and Brasher v. State ... (Ala.App.) 112 So. 535--are easily distinguishable from ... the case at bar. In those cases two separate and distinct ... offenses were proved so that the jury could not say of ... [117 So. 285.] ... which the defendant should be convicted. In this case there ... is only one ... ...