Burt v. State

• Decision Date: 02 September 1924
• Docket Number: 7 Div. 988.
• Citation: 101 So. 768,20 Ala.App. 296
• Parties: BURT v. STATE.
• Court: Alabama Court of Appeals

101 So. 768

20 Ala.App. 296

BURT v. STATE.

7 Div. 988.

Court of Appeals of Alabama

September 2, 1924

Rehearing Denied Oct. 7, 1924.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

John Burt was convicted of violating the Prohibition Law, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Burt, 101 So. 770.

E. O McCord & Son, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN, P.J.

The indictment upon which this defendant was tried and convicted was found by the grand jury at the fall term, 1921, of the circuit court of Etowah county, and was returned into open court on October 15, 1921. It contained two counts. Count 1 in proper form and substance, charged that the defendant did distill, make, or manufacture alcoholic, spirituous, malted or mixed liquors or beverages, a part of which was alcohol etc. And count 2 charged him with the offense of unlawfully possessing a still, etc., to be used for the purpose of manufacturing prohibited liquors and beverages.

The trial of this defendant in the court below did not occur until November 27, 1923. He was then convicted by a general verdict of the jury, to wit: "We, the jury, find the defendant guilty as charged in the indictment." Judgment of conviction was duly pronounced, and the prisoner was sentenced to serve an indeterminate term of imprisonment in the penitentiary of not less than 18 months, nor more than 30 months, from which judgment he appealed.

On the trial of this case several exceptions were reserved to the rulings of the court upon the testimony. However, upon examination of each of these exceptions, we find them so clearly without merit as not to need discussion.

The defendant offered no evidence in his own behalf. The evidence offered by the state was therefore without dispute and consisted of the testimony of several witnesses. It tended to show that during the month of March, 1921, the searching party found in a shed attached to the barn of the defendant "a complete distilling outfit set up; they found a still cap, and worm, flake stand, and furnace; these things were put together; they also found eleven barrels of beer, such as was commonly or generally used in making whisky. The complete still, etc., was about 75 yards from the public road, but was concealed from ordinary observation. They found, also, about 500 gallons of beer which contained alcohol. Also, an oil stove, numerous buckets, and other paraphernalia, and 48 quarts of corn whisky." In a voluntary statement relative to all this, "the defendant said it all belonged to him and that nobody else had anything to do with it."

Before pleading to the merits of the indictment, the defendant filed a purported plea in abatement thereto, seeking to quash the indictment, and the ruling of the court in this connection is the principal insistence of error in this appeal.

The purported plea in abatement was as follows:

"Now comes the defendant and says that the state ought not further to prosecute this indictment against him because that he did appear before the grand jury of Etowah county Ala., and disclose to said grand jury and give in testimony all the facts as to the possession of said distilling, making, manufacturing, alcoholic beverages, a part of which was alcohol, and that he did give to said grand jury all the facts as to the possession by him and another of said still and stilling equipment; that he further testified before said grand jury that he had a part in the same; and that after such testimony had been given by him before said grand jury he was indicted for having said still in his possession and for the manufacture of prohibited liquors thereon as testified to by him before said grand jury, and that the indictment upon which he is now to be tried is for the identical manufacture, possession, etc., as testified to by him before said grand jury in Etowah county, Ala., before said indictment was preferred against him. Wherefore the defendant says that the state of Alabama ought not further to prosecute this cause, and he moves the court that the same be abated and dismissed out of this court. E. O. McCord & Son,

"Attorneys for the Defendant.

"Filed November 27, 1923."

In support of said purported plea defendant offered the following testimony:

"One McHenry being duly sworn testified that he was on the grand jury that convened here in April, 1921; that one Thompson was foreman of said grand jury, D. A. Thompson was his name, and that Mr. Sively was solicitor in charge; that he (witness) knew Burt, the defendant in this cause; that Burt, the defendant, was before the grand jury, as a witness he volunteered to come in, and he testified; he just volunteered to come in and said that it was his still, and his wife did the same; he didn't say it was anybody else's still, but that he had another fellow hired, giving him $10 a night, he said. Witness did not think any questions were asked him. He was sworn. Witness was inside the grand jury room when he came in.

"John Burt, the defendant, being duly sworn, testified as follows: Asked what occurred between himself and the solicitor before he went into the grand jury room, he testified that when the solicitor came out of the grand jury room at dinner witness said to him, 'I am charged here with a liquor case,' and I said, 'There is another man just as guilty as I am,' and I says, 'I don't think it fair for me to bear all the brunt, and I want him indicted for it,' and the

...