Denham v. State
| Decision Date | 06 April 1920 |
| Docket Number | 8 Div. 734 |
| Citation | 86 So. 163,17 Ala.App. 402 |
| Parties | DENHAM v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.
William A. Denham was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
Street & Bradford, of Guntersville, for appellant.
J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
This prosecution originated in the county court; the defendant in that court being charged with the offense of selling one quart of whisky to one John J. Bryant, who made the affidavit upon which the prosecution was based.
From a judgment of conviction in the county court the defendant appealed to the circuit court, and was there tried by a jury on a complaint filed by the solicitor, as provided by Code 1907, § 6730. This complaint, however, in no sense confined the charge against the defendant to that originally made in the county court. To the contrary, the complaint filed by the solicitor, while containing only one count, charged the defendant with a violation of the prohibition law in practically all of its phases; and, as the original affidavit in the county court contained the sole charge that he sold whisky, each of the other allegations made by the solicitor was unauthorized and were mere statements of the solicitor, unsupported by an affidavit as to any of the several offenses charged except that of selling whisky, and said complaint was therefore not a compliance with the law. Acts 1915, p. 30. The court erred in declining to strike every charge from the complaint, except the charge of selling, as there was no affidavit or other proper procedure upon which to base the complaint. The case of Echols v. State, 16 Ala.App. 138, 75 So. 814, is clearly in point here, and upon authority of that case, and cases therein cited, the judgment of the lower court must be reversed. See, also, Ex parte State, 200 Ala. 700, 76 So 998; Maxwell v. State, 16 Ala.App. 508, 79 So. 269; Moore v. State, 165 Ala. 107, 51 So. 357. In view of the cases cited supra, the Attorney General, representing the state upon this appeal, concedes that, for the error in overruling defendant's motion to strike the new or added offenses from the complaint filed by the solicitor, a reversal of the judgment of conviction in the circuit court is necessitated.
Charge 1 was properly refused. In the first place, this charge...
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Hayes v. State, 4 Div. 997.
...state. Tatum v. State, 66 Ala. 465; Echols v. State, 16 Ala.App. 138, 75 So. 814; Ex parte State 200 Ala. 700, 76 So. 998; Denham v. State, 17 Ala.App. 402, 86 So. 163; Broglan v. State, 17 Ala.App. 403, 86 So. Hall v. State, 17 Ala.App. 404, 86 So. 165; White v. State, 17 Ala.App. 404, 86 ......
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Denham v. State
...W.W. Harralson, Judge. William A. Denham was convicted of violating the prohibition law, and he appeals. Affirmed. See, also, 17 Ala.App. 402, 86 So. 163. The affidavit and complaint sufficiently from the opinion. The following charges were refused the defendant: (1-3) There is no evidence ......
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Green v. State
... ... not introduced. This identical question has been decided many ... times by the appellate courts of this state. Tatum v ... State, 66 Ala. 465; Echols v. State, 16 ... Ala.App. 138, 75 So. 814; Ex parte State, 200 Ala. 700, 76 ... So. 998; Denham v. State, 17 Ala.App. 402, 86 So ... 163; Broglan v. State, 17 Ala.App. 403, 86 So. 164; ... Hall v. State, 17 Ala.App. 404, 86 So. 165; ... White v. State, 17 Ala.App. 404, 86 So. 165; ... Moore v. State, 165 Ala. 107, 51 So. 357; Miles ... v. State, 94 Ala. 108, 11 So. 403; Clonts v ... ...
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Broglan v. State
...was tried, was unauthorized, and the court erred in allowing the amendment over the objection and exception of defendant. William A. Denham v. State, 86 So. 163; Moore State, 165 Ala. 107, 51 So. 357; Echols v. State, 16 Ala.App. 138, 75 So. 814; Ex parte State, 200 Ala. 700, 76 So. 998; Ma......