Echols v. State
| Decision Date | 15 May 1917 |
| Docket Number | 7 Div. 437 |
| Citation | 16 Ala.App. 138,75 So. 814 |
| Parties | ECHOLS v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 5, 1917
Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.
Charles Echols was convicted of violating the prohibition law, and appeals. Reversed and remanded.
Roper & Stephens, of Gadsden, for appellant.
W.L Martin, Atty. Gen., Harwell G. Davis, Asst. Atty. Gen., and M.C. Sivley, of Gadsden, for the State.
The defendant was convicted of violating the prohibition law and appeals. The prosecution originated in the county court of Etowah county upon a complaint which contained two counts only, the first count charging that the defendant sold offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors contrary to law. The second count was identical, simply substituting prohibited liquors and beverages. From the judgment of conviction in the county court, the defendant appealed to the circuit court, and was there tried upon a complaint or statement filed by the solicitor under section 6730 of the Code of 1907. The complaint filed by the solicitor as aforesaid contained not only the two counts of the original affidavit, but added two additional counts, the third count charging that the defendant had in his possession more than one-half gallon of spirituous liquor at any one time contrary to law. The fourth count charged that he had in his possession more than two gallons of vinous liquors at any one time, contrary to law.
Before entering upon the trial in the circuit court, the defendant made a motion to strike all the counts from the complaint except those on which he was tried in the county court, on the ground that said counts charged a new and different offense than the one for which he was tried in the county court, and from which judgment of conviction he appealed. The defendant duly excepted to the overruling of said motion, and it is insisted here that the court erred in its ruling on this question. The question is therefore whether counts 3 and 4 of the complaint filed by the solicitor worked a departure from the case made out under the pleading in the county court trial. A departure has been defined to be:
"A statement of matter in a replication, rejoinder, or subsequent pleading, as a cause of action, or defense, which is not pursuant to the previous pleading of the same party, and which does not support and fortify it."
In McAden v. Gibson, 5 Ala. 344, it was held:
"A departure in pleading is said to be, when a party quits or departs from the case or defense which he has first made, and has recourse to another."
We are of the opinion that the counts 3 and 4 of the complaint created a new and separate offense not included or incorporated in the original affidavit upon which the defendant was tried and convicted in the county court, and from which judgment of conviction he appealed to the circuit court, and that the adding of said counts charging a separate and distinct offense from the offenses contained in the original affidavit created the departure complained of, and therefore the court erred in overruling the motion of the defendant to strike said counts from the complaint.
Furthermore, the added counts were unauthorized, as they were the mere statement of the solicitor, unsupported by an affidavit which charged the offense, and therefore not a compliance with the law. Acts 1915, p. 30; Miles v. State, 94 Ala. 106, 11 So. 403.
It is insisted by the state that under section 32 of an act approved January 23, 1915 (Acts 1915, p. 32, § 32), it is provided that prosecutions for the violation of any law enacted for the...
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Sisson v. State
...separate offense is included in the complaint on appeal, such new charges should be stricken on motion of defendant. Echols v. State, 16 Ala.App. 138, 75 So. 814 (1917). The original complaint charged the appellant with driving (or being in actual physical control) of a vehicle while under ......
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Beverly v. State, 8 Div. 146
...he contends that the indictment was amended and that this violated Ala. Const. 1901, Art. I, § 6, and the holding in Echols v. State, 16 Ala.App. 138, 75 So. 814 (1917). That case holds that a complaint which charges a complete offense and gives the defendant notice cannot be amended so as ......
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Hayes v. State, 4 Div. 997.
... ... Law] do not contemplate a departure from the original charge ... and amendments may be allowed if a new and different case was ... 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 ... ...
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Nerud v. City of Mountain Brook
...(1)), Sisson, supra; Collier, supra, and no new and separate offense is included in the "amended" complaint. Echols v. State, 16 Ala.App. 138, 75 So. 814 (1917). The trial judge's ruling accomplished the same result as a nol pros, and treating it as such, we find no error in the ruling. Mur......