Dixon v. State, 4 Div. 368
| Decision Date | 19 August 1958 |
| Docket Number | 4 Div. 368 |
| Citation | 105 So.2d 354,39 Ala.App. 575 |
| Parties | Leonard DIXON v. STATE. |
| Court | Alabama Court of Appeals |
L. H. Walden, Montgomery, and John C. Walters, Troy, for appellant.
John Patterson, Atty. Gen., and Geo. Young, Asst. Atty. Gen., for the State.
Dixon was indicted for and convicted of the felony of transporting prohibited liquors in quantities of five gallons or more--contrary to Code 1940, T. 29, § 187. He was adjudged guilty and sentenced to three years' penal servitude.
On the night of April 26-27, 1956, Mr. W. O. Catrett, an enforcement officer of the Alcoholic Beverage Control Board, started following a 1955 Buick Roadmaster northbound on U. S. Highway 231 in Pike County. After pulling up to the Buick and cutting on his siren, Catrett had to push his car 90 and sometimes over 100 miles an hour to keep up with the Buick. Some 20 miles farther (in Montgomery County) the two occupants of the Buick abandoned it and clambered up a high bank.
When the pursuing officers brought up some bloodhounds, Dixon came out of hiding. He confessed ownership of the car and its cargo, thirteen five-gallon glass jars of moonshine whiskey.
Dixon offered no evidence except to put Catrett on the stand to ask if the State's witnesses had held a pretrial conference to agree on what their testimony would be.
Catrett's testimony that the liquor tasted like moonshine whiskey, together with the sheriff's testimony that the State ABC Stores don't sell whiskey in five-gallon demijohns nor without revenue stamps, sufficed to show a prohibited liquor, Code 1940, T. 29, § 125, Austin v. State, 36 Ala.App. 690, 63 So.2d 283.
The charges refused the defendant, other than those requiring rejection because of their being affirmative in nature, touched on the principle that an attempt could be considered as a lesser included charge with transportation, and a single charge to the effect that the mere presence of the defendant in the car with another who was driving, was not sufficient evidence to convict.
The refusal of this latter charge was proper since the evidence showed more activity than the mere presence of the defendant.
A major rule of jury instruction is that a trial judge should refuse requested charges which--though they state a correct point of law--are nevertheless abstract because the subject matter of the charge finds no corresponding evidence in the trial upon which the jury might deliberate while bearing the instruction in mind. A ramification of this rule is that it is no error to refuse a charge as to finding the defendant guilty of a lesser included offense when the evidence is altogether of guilt of a higher offense or nothing. Kelly v. State, 235 Ala. 5, 176 So. 807; Brooks v. State, 36 Ala.App. 310, 55 So.2d 366; Lindsey v. State, 29 Ala.App. 25, 191 So. 474.
Within this latter application of the rule against abstractness, we have a sub-refinement: a charge that guilt of an attempt is a permissible verdict becomes inappropriate where the evidence is undisputed as to the higher offense--or no offense, Brazier v. State, 25 Ala.App. 422, 147 So. 688; Edwards v. State, 33 Ala.App. 386, 34 So.2d 173; De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130. See dictum Kelly v. State, supra, also in Miller v. State, 37 Ala.App. 470, 70 So.2d 811. There was no error in refusing to charge as to the possibility of a verdict of attempt because the evidence clearly showed an act of transportation.
In brief and in argument, Dixon contends that the transportation statute, § 187, supra, was repealed by the adoption of the 1940 Code, particularly T. 29, § 75. The essence of this argument is that one Code section can nullify another, by reason of the fact that the one coming into the statute later should take precedence over the earlier section. While there may be some field of operation for repeal by implication where a later enactment necessarily operates to exclude part or all of a former statute, nevertheless, as between sections of the Code, we see here no field of operation for this principle.
The Code, on adoption, repeals all omitted former laws of a general and permanent nature, T. 1, § 9, Fore v. Alabama State Bridge Corp., 242 Ala. 455, 6 So.2d 508, and it is considered as an entirety--struck off by the mind of the legislator in a single act of law...
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