Daniel v. State

• Decision Date: 07 February 1907
• Citation: 43 So. 22,149 Ala. 44
• Parties: DANIEL v. STATE.
• Court: Alabama Supreme Court

43 So. 22

149 Ala. 44

DANIEL v. STATE.

Supreme Court of Alabama

February 7, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Will Daniel was convicted of selling spirituous liquors, and appeals. Reversed and remanded.

The indictment in this case was as follows (after usual caption) "That Will Daniel sold spirituous, vinous, or malt liquors without a license and contrary to law; (2) that Will Daniel did give away or otherwise dispose of spirituous vinous, or malt liquors without a license and contrary to law; (3) that Will Daniel did unlawfully sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, or other intoxicating beverages, within three miles of Belle Sumter, a coaling ground in precinct 3, in Jefferson county and not in an incorporated town having police jurisdiction both day and night--against," etc. To this indictment the defendant filed a plea of misnomer, alleging that his name was not "Daniel," but "McDaniel," and that he is not known or called by the name of "Daniel." This plea was submitted to the jury under the evidence, and issue found against defendant. The defendant also moved to quash the indictment, and each count thereof: "(1) Because said indictment does not charge any offense under the laws of Alabama. (2) It does not charge any offense known to the common law. (3) Said indictment charges in the disjunctive two offenses, and the averment of each disjunctive is insufficient to constitute an offense. (4) Neither does any count thereof in said indictment aver that the alleged selling, giving away, or otherwise disposing of spirituous, vinous, or malt liquors, or other intoxicating beverages, was within two miles of any coaling grounds in the county of Jefferson. (5) It is not alleged in said indictment that the alleged selling, giving away, or otherwise disposing of vinous, spirituous, or malt liquors, or other intoxicating beverages, was done without a license or contrary to law. (6) It is not alleged in said indictment, or any of the counts thereof, that said acts were not done in an incorporated town having police regulation both by day and night. (7) For that the act upon which this prosecution is based has been repealed by an act to provide for the revenue of the state approved March 4, 1903." This motion was granted as to the third count, and overruled as to the other two. The facts in the record are sufficiently set out in the opinion. To raise the questions presented, the defendant requested in writing the following charges, which the court refused: "(1) If the jury believe the evidence in this case, they must find the defendant not guilty. (2) I charge you, gentlemen of the jury, that 'Hop-Ale,' or 'Hop-Jack,' is not a malt liquor. (3) I charge you that the state must show beyond a reasonable doubt and to a moral certainty that the defendant sold, gave away, or otherwise disposed of spirituous, vinous, or malt liquors without a license and contrary to law, and that the evidence must satisfy you beyond a reasonable doubt that 'Hop-Ale,' or 'Hop-Jack,' is a spirituous, vinous, or malt liquor before you can convict the defendant." In its oral charge the court stated to the jury: "I charge you, gentlemen of the jury, as a matter of law, that 'Hop-Ale,' or 'Hop-Jack,' is a malt liquor." The defendant excepted to this, and also to the following oral charge of the court: "If you believe the evidence in this case, that the defendant did, within twelve months before the finding of this indictment in this county, sell 'Hop-Jack,' or 'Hop-Ale,' you should find him guilty."

Frank S. White & Sons, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The defendant filed a plea of misnomer to the indictment. Issue was joined on this plea. The evidence was in conflict. The court properly submitted the question to the jury.

The indictment contained three counts. The defendant moved to quash the indictment, and each and every count thereof. The court sustained the motion to quash as to the third count, but overruled it as to the first and second counts. The first count is in Code form and unobjectionable. The second count is defective, but the proper mode of reaching the defect was by demurrer, and not by motion to quash. Boulo v. State, 49 Ala. 22. Moreover, the motion to quash an indictment is, as a general rule, addressed to the discretion of the court, and in the present case, on the grounds predicated in the motion, the rule applies. White v. State, 74 Ala. 31.

The...