Emerson v. State, 6 Div. 671.

• Decision Date: 04 February 1941
• Docket Number: 6 Div. 671.
• Citation: 4 So.2d 183,30 Ala.App. 248
• Parties: EMERSON v. STATE.
• Court: Alabama Court of Appeals

4 So.2d 183

30 Ala.App. 248

EMERSON v. STATE.

6 Div. 671.

Alabama Court of Appeals

February 4, 1941

Rehearing Denied Feb. 18, 1941.

Reversed on Mandate June 30, 1941.

Rehearing Denied Oct. 7, 1941.

Certiorari granted by Supreme Court in Emerson v. State, 4 So.2d 186.

DeGraffenried & McDuffie, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The former opinion by this court in this case is hereby withdrawn and held for naught, under the provisions of Section 7318, Code 1923, Code 1940, Tit. 13, § 95.

We will now proceed to consider this appeal upon its merits.

The prosecution in this case was for the violation of the State prohibition law, Code 1940 Tit. 29, § 93 et seq. It originated in the Inferior Court of Tuscaloosa County Alabama, upon an affidavit and warrant, both regular and in proper form and substance.

From a judgment of conviction in said Inferior Court, an appeal was taken to the circuit court, as the law provides.

In the circuit court, the defendant, demanded a jury trial, which was granted and he was there tried upon a complaint filed in said court by the Solicitor. Said complaint was in words and figures as follows:

"Complaint

"The State of Alabama ) In the Circuit Court July Term, 1939. On Appeal

Tuscaloosa County from the County Court.

"State of Alabama

vs.

Miller C. Emerson

"1. The State of Alabama, by its Solicitor, complains of Miller C. Emerson that, within twelve months before the commencement of this prosecution, he did sell, offer for sale, keep for sale, or otherwise dispose of spirituous, vinous or malt liquors, contrary to law.

"2. The State of Alabama, by its Solicitor, complains of Miller C. Emerson that, within twelve months before the commencement of this prosecution, he did have in his possession spirituous, vinous or malt liquors, contrary to law.

"Gordon Davis

"Circuit Solicitor.

"Filed in office 17 day of Oct., 1939.

"I. N. Hobson, Clerk."

Before entering upon the trial in the circuit court upon the merits of this case, the defendant interposed his plea of former jeopardy, as appears of record. By consent of parties this matter was considered by the court without a jury. The result of said hearing was in favor of the State and against the defendant, and the court held that the judgment of the Inferior Court could not be impeached by parol testimony in the manner undertaken by the accused. The ruling of the court in this matter was correct, and the exception reserved to said ruling is without merit.

We have read and considered the evidence adduced upon the trial of this case in the court below. The evidence for the State tended to show that the defendant was in possession of a small bottle which he broke on the concrete floor of a garage near his place of business. Two of said witnesses testified they saw him break the bottle and that they found a few drops of whiskey left in portion or particle of said bottle. The witnesses also testified to have found in a cache, or hole in the ground, some distance away from defendant's place of business, 24 cans of beer. This beer was not upon the premises of defendant, but they testified a well beaten path led from his store to the hole in the ground where the beer was found. Said witnesses testified they did not know who owned the beer or who was in possession of it. Said witnesses further testified they made a thorough search of defendant's place of business for whiskey and beer but found none anywhere in the building.

The State witnesses hereinabove referred to, as shown by the record, were law enforcement officers. They did not arrest the defendant on the occasion, but he was arrested some days later, upon the process set out above.

The defendant, testified he had no bottle of whiskey on that occasion and did not break any bottle at all. Further, the 24 cans of beer the officers found did not belong to him, nor was it on his premises, and that he had no possession of it, and didn't know anything about it. His testimony in the main, was corroborated by witnesses who testified in his behalf.

From the foregoing conflicting evidence a jury question was presented, but we note from the record the trial below was conducted throughout in a very unusual manner wherein the constitutional rights of the accused were manifestly impinged, i. e. to say he was not, in our opinion, accorded the fair and impartial trial to which every person charged with crime is entitled.

Any person charged with, or on trial for, a criminal offense is entitled to a fair and impartial trial, for the law is that no person shall be accused, arrested, detained, or tried except in the manner and form provided by law. It makes no difference how guilty a person might be, these sacred and valuable constitutional and statutory rights of the citizen cannot be disregarded by trial courts, over the objection of the accused, and such unlawful acts affirmed, on the ground that the citizen was not injured by thus being deprived of his rights. It is difficult to understand how it is possible that a citizen is not injured when he...