Cusimano v. State
| Decision Date | 11 March 1947 |
| Docket Number | 7 Div. 861. |
| Citation | 31 So.2d 139,33 Ala.App. 62 |
| Parties | CUSIMANO v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied March 25, 1947.
Miller & Pittman, of Gadsden, for appellant.
A A. Carmichael, Atty. Gen., and John O. Harris, Asst. Atty Gen., for the State.
At the Fall Term of the Circuit Court of Etowah County the grand jury returned an indictment against this appellant (defendant below) which reads as follows: 'The State of Alabama Etowah County} Circuit Court Fall Term 1944 Count 1 'The Grand Jury of said County charges that before the finding of this indictment that Joe Cusimano did transport, in Etowah County, Alabama, in quantities of Five Gallons or more prohibited liquors or beverages, a part of which was alcohol the sale, possession or transportation of which is prohibited by law, contrary to law and against the peace and dignity of State of Alabama.'
Said indictment was returned and filed in open court on September 22, 1944.
The defendant was arraigned upon said indictment on March 28 1945, and the pertinent portion of the judgment entry reads as follows:
On the same day, March 28th, 1945, the defendant made application for probation to the trial court, and by order of the court was released upon his same bond pending action on said application for probation.
The next orders made and entered, as appears of record, are as follows:
'The Defendant having applied for the benefits of probation within one (1) day after sentence and the Court having examined the cause it is ordered, adjudged, and decreed, on this the 15th day of September, 1945, that said application be, and the same is hereby denied.
'On this the 15th day of September, 1945, the Defendant in open court and by and through his attorney gives notice of appeal to the Court of Appeals of the State of Alabama and execution of this judgment and sentence in this case is hereby suspended pending said appeal, and Defendant's appearance bond is hereby fixed at Two Thousand Dollars ($2,000.00).'
The case was argued and submitted in this court on January 16, 1947.
In the oral argument, and also in written brief, of able and earnest counsel for appellant, the insistence is made that notwithstanding no objection, by demurrer or otherwise, was interposed to the indictment to which appellant, as stated plead guilty; that the indictment is void and will not support a judgment of conviction for the following reasons. Viz:
'The appellant sincerely contends that the indictment in this case is void and will not support a judgment of conviction.
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