Cusimano v. State
| Decision Date | 16 March 1943 |
| Docket Number | 7 Div. 685. |
| Parties | CUSIMANO v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr. Judge.
The complaint filed in the Circuit Court (substantially in the language of the affidavit filed in the county court) charges that defendant "being at the time a licenses for retailing liquor did sell, furnish or give liquor, vinous and/or malt or brewed beverages to Will Moore before the time fixed by law for closing the polling places on a day on which a primary election was being held".
The affidavit charges that defendant, "being at the time a licensee for retailing liquor did sell", &c.
McCord & McCord, of Gadsden, for appellant.
Wm N. McQueen, Acting Atty. Gen., and John W. Vardaman, Asst Atty. Gen., for the State.
This prosecution originated in the County Court of Etowah County by affidavit in legal form, charging the defendant with selling or furnishing liquor or vinous, or malt or brewed beverages on election day (May 7, 1940) before the polls closed. He was convicted in that court, appealed to the circuit court, was there again convicted, and now presents his appeal to this court for a review of the rulings in the circuit court trial.
The law proscribing such sales was, at that time, Section 24(3), of Act No. 66, H. 44, page 64, General Acts 1936-37, now Code 1940, Title 29, Section 36(3).
The affidavit in the county court was in proper form, substantially followed the language of the statute, and contained the necessary averments to charge the offense.
The contention, therefore, of appellant's able counsel, that the court erroneously overruled the demurrers to the solicitor's complaint, filed in the circuit court, cannot be sustained. The misdemeanor charged was for violating a law "for the suppression of the evils of intemperance", and the original affidavit was sufficient upon which to rest the prosecution in the circuit court. Code 1923, Sec. 4646, now Code 1940, Title 29, Sec. 121. The solicitor's complaint was unnecessary, and whatever its defects (if any), the defendant was not thereby prejudiced. Wilson v. State, 27 Ala.App. 38, 166 So. 715, certiorari denied 232 Ala. 50, 166 So. 716.
Careful scrutiny of the record fails to reveal any reversible error. The sole contested question on trial was the guilt or innocence of the defendant. The evidence was in strict conflict as to this, and it was the jury's province to consider the same and make up their verdict, which they did, against the defendant. There is nothing before us to warrant our interference with it.
The ruling of the trial court, denying the motion for a new trial, also must be sustained in view of its presumed correctness upon review. 7 Alabama Digest, Criminal Law, + 1141(2); Wilson v. State, 30 Ala.App. 126, 3 So.2d 136; Taylor v. State, 30 Ala.App. 316, 5 So.2d 117.
Generally, jurors will not be permitted to impeach their own verdicts by disclosing their deliberations. Lawler v. State, 22 Ala.App. 329, 115 So. 420; Harris v. State, 241 Ala. 240, 2 So.2d 431. Such was the effect of the affidavit of Juror Johnson, exhibited in support of the motion for new...
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...verdict by testifying as to the manner of reaching said verdict under the evidence or as to what their deliberations were. Cusimano v. State, Ala.App., 12 So.2d 418; Mullins v. State, 24 Ala.App. 78, 130 So. certiorari denied, 222 Ala. 9, 130 So. 530; Harper v. State, 16 Ala.App. 153, 75 So......
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