Cunningham v. State
| Decision Date | 23 March 1917 |
| Docket Number | 7 Div. 344 |
| Citation | 15 Ala.App. 644,74 So. 747 |
| Parties | CUNNINGHAM v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Gadsden; James A. Bilbro, Judge.
Arthur Cunningham was convicted of violating the prohibition law and he appeals. Affirmed.
The facts sufficiently appear. Charge 5 is as follows:
If you find from this evidence that defendant received the whisky prior to January 27, 1915, you will find defendant not guilty.
Charge 6:
If you find from this evidence that defendant had in his possession within four consecutive weeks prior to the beginning of this prosecution no more than 120 pints of malt liquor, you will find defendant not guilty under count 7 of the complaint.
Roper & Stephens, of Gadsden, for appellant.
W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.
The defendant was tried and convicted in the county court for violating the prohibition law and appealed to the city court of Gadsden. In the city court the solicitor filed a complaint containing several counts. The first three charged that the defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, etc. Counts 4 and 5 sought to charge a violation of the law which makes it unlawful for a person to have in his possession at one time more than one-half gallon of spirituous liquors, etc. Demurrers were confessed to counts 4 and 5, and the complaint was amended by adding counts 6 and 7, which charged, in the sixth count, that the defendant had in his possession at one time more than one-half gallon of spirituous liquors, and, in the seventh count, that he had in his possession at one time more than 60 pints in bottles of malted liquors, etc. Demurrers to counts 6 and 7 of the complaint as amended were overruled. There was a general verdict of guilty as charged in the complaint. The undisputed evidence showed that the defendant had in his house on the 22d or 23d day of February, 1915, 48 pint bottles of corn whisky, and that it was hidden behind the ceiling in the defendant's house; that the ceiling had been sawed between the studding with a flap of paper over it, making a hole large enough to pull a pint bottle through; that on the same day there was found in a small closet in the corner of the defendant's kitchen a barrel containing 95 or 100 pint bottles of Cook's Gold Blume beer, etc.
The demurrers to counts 6 and 7 raised the question of the constitutionality of section 12 of the prohibition law known as the Bonner Law (Acts 1915, p. 44), and also that said counts failed to aver that the prohibited liquors found in the possession of the defendant were received after the said law became effective.
The constitutionality of section 12, Acts 1915, p. 44 (Bonner Law), was passed upon by the Supreme Court in the case of Southern Express Co. v. Whittle, 194 Ala. 406, 69 So. 652, L.R.A. 1916C, 278, and the question was decided adversely to the contention of the defendant in this case. It was held in that case that section 12 of said act, making it unlawful to possess more than a specified quantity of the prohibited liquors, is a valid exercise of the police power, and does not infringe upon the constitutional guaranties as to personal or property rights which are taken as the basis of attack upon the constitutionality of the act by the defendant. Southern Express Co. v. Whittle, supra.
There is no merit in the second contention raised by demurrers, for it makes no difference, and it is immaterial, as to when, where, or under what circumstances the prohibited liquors were acquired; for the offense is in having in one's possession more than the specified amount of prohibited liquors, without regard to the time or...
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