Davenport v. State

• Decision Date: 07 September 1916
• Docket Number: 6 Div. 94
• Citation: 15 Ala.App. 325,73 So. 209
• Parties: DAVENPORT v. STATE
• Court: Alabama Court of Appeals

73 So. 209

15 Ala.App. 325

DAVENPORT v. STATE

6 Div. 94

Court of Appeals of Alabama

September 7, 1916

Rehearing Denied Oct. 19, 1916

Appeal from Criminal Court, Jefferson County; W.E. Fort, Judge.

Oscar Davenport was convicted of violation of the prohibition statute, and appeals. Affirmed.

H.K White, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

EVANS J.

This appeal is prosecuted from a judgment of conviction for violation of the prohibition statute. The affidavit contained six counts. A motion to quash was made, addressed to the affidavit as a whole, and demurrers were interposed addressed to the second and subsequent counts. The state elected to prosecute only under the first count; consequently we pretermit all discussion save as to that count.

The first count charged defendant, in the alternative, with manufacturing, selling, offering for sale, keeping for sale or otherwise disposing of, prohibited liquors or beverages contrary to law. It is sufficient to charge these offenses in the language of the statute (Acts 1915, p. 30, § 29 1/2; Hancock's Case, 71 So. 973; Kirk's Case, 70 So. 990) and they may be joined in the alternative in the same count (Code 1907, § 7151).

The bill of exceptions discloses a motion made by appellant that the cause be tried by a jury. Under the act creating the criminal court of Jefferson county a jury is deemed waived in misdemeanor cases unless "within ten days after [he] is arrested or taken into custody or *** the court *** assumes jurisdiction of [said] case" the accused file with the clerk of said court a written demand for a jury. Acts 1886-87, p. 838, § 13. The bill of exceptions recites:

"Said written demand for a jury was in type-writing, except the signature. *** There appeared upon the face thereof at the bottom the words 'September 9th, 1915,' in a handwriting not identified by testimony, but apparently the same handwriting as the signature. There was nothing on said slip of paper containing the written demand for a jury trial, other than said words 'September 9th, 1915,' to show when said written demand for a jury trial was filed in the office of the clerk of the court, and nothing to show that it was ever filed with the clerk of said court. It was not marked nor indorsed, 'Filed,' and the name of the clerk of the criminal court did not appear anywhere on said written demand for a jury trial. There was no evidence offered to the court by the defendant or his counsel in support of said motion." Transcript, pp. 6, 7.

For aught that appears from the transcript filed here, we do not know and cannot say that said written demand was timely filed. In the absence of an affirmative showing to the contrary, we must presume that the said demand was not seasonably filed. A bill of exceptions is construed most strongly against the appellant, as it is presumed that he will make the best presentation of his appeal the circumstances...