Christian v. State
| Decision Date | 29 October 1940 |
| Docket Number | 8 Div. 997. |
| Citation | 29 Ala.App. 497,198 So. 366 |
| Parties | CHRISTIAN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Madison County; Schuyler H. Richardson Judge.
Jim Christian was convicted of violating the prohibition law, and he appeals.
Reversed and remanded.
John E McEachin, of Huntsville, for appellant.
Thos. S. Lawson, Atty. Gen., and John J Haynes, Asst. Atty. Gen., for the State.
The prosecution in this case was begun under a local act of the Legislature, Local Acts of Alabama 1919, p. 17, wherein it is provided that prosecutions of persons charged with misdemeanors in Madison County may be begun by affidavit made before the Clerk of the Circuit Court of Madison County, and that thereupon the jurisdiction of the Circuit Court of Madison County shall attach, and the same shall proceed to trial and judgment under the same rules and procedure as provided by law in misdemeanor causes, etc.
The affidavit charged this appellant (defendant below) with the offense of violating the State prohibition law. It contained numerous alternate averments, and was proper in form and substance. The trial court therefore committed no error in overruling the demurrer interposed by the defendant. Section 4644, Code 1923.
Upon the trial, the State made no effort, nor offered any testimony, to sustain any of the alternate averments in the affidavit, except, "that the defendant did have in possession illegally prohibited liquors."
The evidence in this case was without dispute or conflict. It tended to show that the State's witnesses found in the living quarters (bed room) of the defendant, several pint bottles of whiskey. The State witness testified, as did the defendant, that the whiskey so found, all bore the necessary State stamps. The locus in quo was in Madison County Alabama, which we judicially know to be a "wet" county, hence the possession of legal whiskey or other legal intoxicating liquors is permissible under the law.
The rule is axiomatic, that the evidence and allegations in the pleadings must correspond, i. e. the allegata and probata must agree; the latter must support the former.
This case was tried in the court below upon the specific charge (1) that the possession by the defendant of the whiskey in question was illegal; (2) that the said whiskey was prohibited liquor.
The proof offered in support of the above charges was insufficient to sustain either of them. As to charge (1) supra, the evidence adduced upon the trial of this case disclosed, without dispute or conflict, that the defendant just a few days prior to the day the whiskey in question was found in his possession, had duly and legally purchased said...
To continue reading
Request your trial