Dees v. State

• Decision Date: 15 May 1917
• Docket Number: 6 Div. 300
• Citation: 16 Ala.App. 97,75 So. 645
• Parties: DEES v. STATE.
• Court: Alabama Court of Appeals

75 So. 645

16 Ala.App. 97

DEES v. STATE.

6 Div. 300

Court of Appeals of Alabama

May 15, 1917

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

W.W Dees was convicted, and appeals. Affirmed.

The defendant was tried on an affidavit containing ten counts charging in various ways violations of the prohibition laws and was convicted on counts 1 and 5, and from the judgment he appeals. Counts 1 and 5 were as follows:

"First. That there is probable cause for believing, and affiant does believe, that W.W. Dees, whose name is otherwise unknown to affiant, within 12 months before making this affidavit, and subsequent to September 25, 1915, in said county, did manufacture, sell, offer for sale, keep or have in his possession for sale, barter, exchange, give away furnish at a public place or elsewhere, or otherwise dispose of, prohibited liquor or beverages, contrary to law."

"Fifth. And affiant further says that there is probable cause for believing and affiant does believe, that W.W. Dees, whose name is otherwise unknown to affiant, within 12 months before making this affidavit, and subsequent to September 25, 1915, in said county, did solicit or receive an order for spirituous, vinous, or malt liquor, or other liquors or beverages prohibited by the law of this state to be sold, or offered for sale, or otherwise disposed of in this state, to be shipped into this state, or to be shipped from one point in this state to another point in this state, contrary to law."

The defendant demurred to each of these counts. It was shown by the evidence that the defendant was running a bottling plant in Jefferson county, and that from this place the officers got a quantity of stuff in bottles called "Brother Wiser"; and it was further shown that defendant kept this drink for sale and solicited orders for it, it until he was arrested in this case. During the progress of the trial, the state was permitted to prove, over the objection of the defendant, that the contents of the bottles found in the possession of defendant "was like other beer"; that it "foamed like beer," "smelled like beer"; that it smelled like Budweiser and Schlitz; that it was in bottles the same size, color, and shape that Budweiser and Schlitz and other beers were ordinarily sold in; that it had similar tops, etc.; that the only way witness could distinguish between Brother Wiser and Budweiser without a chemical analysis was, Budweiser is a little stronger.

After the state's evidence was all in and the solicitor announced that the state would rest, the defendant stated that, for the purpose of preserving the point as to the invalidity of section 32 1/2 of the prohibition act, he moved to exclude all of the state's evidence.

The defendant then offered evidence to the effect that the contents of the bottles seized was not beer, nor spirituous, vinous, or malt liquor; and that it did not have the same effect, nor did it look like a prohibited liquor. The liquor and bottles were introduced in evidence.

Gaston & Drennen, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst....