Corrunker v. State

• Decision Date: 18 December 1923
• Docket Number: 6 Div. 260.
• Citation: 98 So. 363,19 Ala.App. 500
• Parties: CORRUNKER v. STATE.
• Court: Alabama Court of Appeals

98 So. 363

19 Ala.App. 500

CORRUNKER v. STATE.

6 Div. 260.

Court of Appeals of Alabama

December 18, 1923

Appeal from Circuit Court, Jefferson County; Walter B. Jones, Judge.

J. P Corrunker was convicted of violating the prohibition law, and appeals. Affirmed.

D. G Ewing, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The appellant was tried in the circuit court upon an affidavit containing two counts. The first count charged that he sold etc., prohibited liquors, and the second count charged that he had in his possession prohibited liquors.

The evidence for the state tended to show that the appellant and another were riding in a Ford car along the Montgomery highway in Jefferson county; that certain officers chased them for about a mile; that they turned off said highway going about 300 yards into the Camp Andrews road. When the officers approached the car both of the men jumped from the car and ran, one of the officers pursuing this defendant about a mile, but failing at the time to catch him.

There were 52 gallons of corn whisky in the Ford car in which the defendant was riding. There was evidence that the defendant was driving the car.

The evidence for the defendant tended to show that the officers were mistaken as to his identity, that he was not in the Ford car, was not the man who jumped from the car and ran, and had nothing to do with the liquor.

There was a general verdict of guilty.

Where an indictment or complaint contains two or more counts, and the evidence justifies a conviction under one of the counts, a general verdict of guilty will be referred to the count supported by the evidence. 1 Mayf. Dig. p. 865, par. 3.

The second count is in the words of the statute, and is sufficient to sustain a conviction. Its sufficiency was not tested by demurrer or otherwise. It is contended by appellant's counsel that the second count "fails to state that offense was committed in Jefferson county, Ala." The caption of the affidavit reading "State of Alabama, Jefferson County," and the count averring that the offense was committed in "said county" sufficiently avers that the offense was committed in Jefferson county.

It does not appear from the record that the defendant made any objection to being put to trial on the affidavit, or that the court's attention was called to the fact that the defendant was arrested on October 28, 1922, and that the affidavit was made and the warrant of arrest issued on October 30, 1922.

The defendant having appeared in court and interposed his plea of not guilty to the affidavit made on October 30, 1922, waived any objection he might have taken on the ground that he had never been arrested on the warrant...