Bush v. State

Decision Date21 January 1915
Docket Number269
Citation12 Ala.App. 260,67 So. 847
PartiesBUSH v. STATE.
CourtAlabama Court of Appeals

Appeal from Shelby County Court; E.S. Lyman, Judge.

Tom Bush was convicted of violating the prohibitions law, and he appeals. Affirmed.

Riddle & Ellis and Acuff & Pitts, all of Columbiana, for appellant.

W.L Martin, Atty. Gen., for the State.

BROWN, J.

The original affidavit on which the prosecution was commenced was in the form prescribed by the statute (Gen.Acts Sp.Sess.1909, p. 90, § 29 1/2, charging in the alternative that the defendant "did sell, keep for sale, offer for sale, or otherwise dispose of spirituous, vinous, or malt liquors, contrary to law," etc. This charge was broad enough to cover the offense denounced by section 24 of the act, making it unlawful for one person to ship, transport, or deliver for another "prohibited liquors" as defined in this statute, when received at one point in this state to be shipped, transported, or delivered to another point in this state. The terms "otherwise disposed of," when used in the connection set forth in the affidavit, the act provides "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 to another." Gen.Acts Sp.Sess.1909 p. 91, § 31.

The legal effect of the amendment was merely to add another count, making the charge more specific by averring, in the language of the statute, that the defendant "transported or delivered for another prohibited liquors or beverages, received at one point in this state to be shipped or transported to or delivered to another person," etc. The court in allowing this amendment impinged no right of the defendant. Campbell v State, 150 Ala. 70, 43 So. 743; Brannon v. State, 67 So. 634.

The term "prohibited liquors or beverages" is defined by the Legislature as including "all liquors, liquids and beverages prohibited by the law of the state to be manufactured, sold or otherwise disposed of, or any device or substitute for any of them, and shall also be so understood in any warrant, process, affidavit, complaint," etc. Acts supra, § 31. The legal import of the averments made in the second count of the complaint is that the defendant transported or delivered for another liquors or beverages in violation of the statute, and imposed upon the state the burden of proving the charge as laid. The demurrer to the second count of the complaint was not well taken, and was properly overruled. Brannon v. State, supra; Traylor v. State, 100 Ala. 142, 14 So. 634; Jordan v. State, 5 Ala.App. 229, 59 So. 710.

While the recitals in the judgment entry indicate that the defendant interposed his plea of not guilty before the amendment of the complaint by adding the second count was allowed, it affirmatively appears that the plea was interposed, and that the defendant had full benefit of the plea as to both counts of the complaint. The plea of not guilty as interposed applied to both counts of the complaint, and it was not necessary for the defendant to plead again before the trial was entered upon. Howard v. State, 165 Ala. 18, 50 So. 954. Under rule 45 of the Supreme Court practice (61 South. ix), it appearing on examination of the entire case that defendant had full benefit of his plea, no ground for reversal is shown. Harwell v. State, 68 South. ----

The original complaint charged several offenses in the alternative (Allison v. State, 1 Ala.App. 207, 55 So. 453), embracing, as we have shown, the offense charged in the affidavit added by amendment, and the defendant was tried on the complaint as amended. The corpus delicti of one of the offenses charged in the first count was the unlawful keeping...

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15 cases
  • Lacy v. State
    • United States
    • Alabama Court of Appeals
    • February 11, 1915
    ... ... 715; Monroe v. State, 111 Ala. 22, 20 So ... 634; Wall v. State, 2 Ala.App. 157, 56 So. 57; ... Gleason v. State, 6 Ala.App. 49, 60 So. 518; ... Traylor v. State, 100 Ala. 142, 14 So. 634; ... Jordan v. State, 5 Ala.App. 229, 59 So. 710; ... Brannon v. State, 67 So. 1007; Bush v ... State, 67 So. 847. There is no vitiating uncertainty ... introduced into count 4 by the averment that the property ... embezzled or converted by the defendant was "of or about ... the amount of $50,000, and of that value." Phelps v ... People, 72 N.Y. 334. The only possible ... ...
  • Barefield v. State
    • United States
    • Alabama Court of Appeals
    • June 15, 1916
    ...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 Court 70 So. 1012. In such cases, it is permissible for the prosecution to offer e......
  • Howard v. State
    • United States
    • Alabama Court of Appeals
    • September 7, 1916
    ...was not subject to the demurrers. Arrington v. State, 69 So. 385, affirmed by the Supreme Court in Ex parte Arrington, 70 So. 1012; Bush v. State, 67 So. 847; Harrison State, 69 So. 383; Whaley v. State, 69 So. 384. The fourth count follows the language of section 12 of the Bonner Anti-Ship......
  • Bridgeforth v. State
    • United States
    • Alabama Court of Appeals
    • July 10, 1916
    ...Ala. 432, 55 So. 226, Ann.Cas.1913E, 296; Rayfield v. State, 167 Ala. 94, 52 So. 833; Darrington v. State, 162 Ala. 60, 50 So. 396; Bush v. State, supra. The declaration of in the presence of the defendant "that he was expecting the defendant's hack to meet him" not only tended to show that......
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