Evans v. State, 6 Div. 786.

Decision Date30 June 1931
Docket Number6 Div. 786.
Citation135 So. 647,24 Ala.App. 390
PartiesEVANS v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.

Charley Evans was convicted of manufacturing whisky and possessing a still for that purpose, and he appeals.

Reversed and cause remanded.

A. A Griffith, of Cullman, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

BRICKEN P.J.

The appellant, defendant below, was indicted and charged with manufacturing whisky and having a still in his possession for the purpose of manufacturing prohibited liquors or beverages. He was tried on this indictment and convicted, the jury returned a general verdict of guilty, and his punishment was fixed at imprisonment in the penitentiary for a term of not less than two years and not more than three years. From this judgment of conviction this appeal was taken.

Before entering upon the trial, the defendant filed a plea of autrefois convict; said plea is as follows:

"Comes the defendant by his attorney and for plea says: The State ought not to further prosecute this indictment against him because at a regular term of the County Court a complaint or affidavit was preferred or made against him in said County Court in words as follows: 'The State of Alabama, Cullman County, County Court. Before me, S. J. Griffin, Judge of the County Court of said County, personally appeared Belt Edmondson who, being sworn deposes and says that he has probable cause for believing, and doth believe that Charley Evans did buy, sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship, prohibited liquors contrary to law in said County within the past twelve months, against the peace and dignity of the State of Alabama.
"'C. B. Edmondson.

"'The above sworn and subscribed to before me this 2nd day of June, 1928.

"'S. J. Griffin, Judge of the County Court.'

"That at a regular term of said County Court, on, to-wit: The 6 day of August, 1928, the Defendant was put upon trial by said Court for said offense, and he plead guilty and was duly convicted by said court of said offense charged in the above complaint, which this defendant alleges was based upon and is of the same matters and transactions as is alleged in this indictment or prosecution, of which he is now charged. All of which the defendant is ready to verify, and prays judgment that he should be discharged as to the present indictment.

"Barney Bland, Attorney for Defendant.

"Sworn and subscribed to before me this 19th day of Sept. 1929.

"T. M. Bailey, Clerk."

The record discloses that the court ex mero motu disposed of said plea by making and entering the following order: "1929, Sept. 19. The motion or plea overruled and defendant excepts." That is the only order that the record discloses that was made on the defendant's motion or plea. The state did not, so far as the record reveals, make any motion to strike the plea nor file any demurrer to the same, but, so far as can be ascertained from the record, the court ex mero motu overruled the motion or plea of defendant.

The plea shows that the defendant, in the court below, was undertaking to set up as a part of his defense that he had theretofore been convicted in the county court of Cullman, Ala., for having contraband liquor in his possession, and that the liquor constituted a part of the transaction of operating a still or having a still in his possession for the purpose of manufacturing liquor. In other words, the defendant was undertaking under this plea to set up that, when the officers raided him, they found this liquor on his premises, and that the liquor so found had been made on this still, and that he was entitled to require the state to elect for which offense they would prosecute him, and the state, having insisted on a prosecution for having liquor in his possession, which was all the liquor made on this still and in his possession at this time, would be estopped from further prosecuting the defendant for making liquor or having a still in his possession. In this connection appellant relies upon the following decisions: Jones v. State, 19 Ala. App. 600, 99 So. 770; Savage v. State, 18 Ala. App. 299, 92 So. 19; Haraway v. State, 22 Ala. App. 553, 117 So. 612; Moss v. State, 3 Ala. App. 190, 58 So. 62; Moore v. State, 71 Ala. 307; Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79.

It is insisted that "the Supreme Court and the Court of Appeals have laid down the rule that the matter set out in the plea involved in this case, is a good defense, provided the evidence discloses that the liquor was made on the still and had not been separated or carried away from the place where it was distilled, and at the time of the raid was in possession of the defendant." It is admitted, however that "both courts have held that if the liquor made on the still was carried away by the defendant and was found by the officers in a different place, that, in and of itself, would be a distinct offense, for which the defendant was subject to prosecution." It is also insisted "that the defense set up in the plea would be available to the defendant under certain circumstances, provided the plea was properly drawn and set up by its averments a sufficient finding of facts so that the...

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11 cases
  • Story v. State, 5 Div. 659
    • United States
    • Alabama Court of Criminal Appeals
    • November 23, 1982
    ...(1970); Carter v. State, 43 Ala.App. 178, 184 So.2d 847 (1966); Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Where the issue presented by the plea is a question of law only, however, there is no need to submit that issue to a ju......
  • Billups v. City of Birmingham
    • United States
    • Alabama Court of Criminal Appeals
    • October 3, 1978
    ...22 So.2d 532, cert. denied, 247 Ala. 48, 22 So.2d 537 (1945); Slayton v. State, 31 Ala.App. 622, 21 So.2d 122 (1945); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Ordinarily it is the duty of the court to hear evidence on a plea of former jeopardy and submit the same to the jury; an......
  • EX PARTE RYALS
    • United States
    • Alabama Court of Criminal Appeals
    • September 21, 2001
    ...(1970); Carter v. State, 43 Ala.App. 178, 184 So.2d 847 (1966); Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). "Where the issue presented by the plea is a question of law only, however, there is no need to submit that issue to a j......
  • Ex parte Adams
    • United States
    • Alabama Supreme Court
    • September 22, 1995
    ...(1970); Carter v. State, 43 Ala.App. 178, 184 So.2d 847 (1966); Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931)." 435 So.2d at 1364. All of these cases turn on the state and federal constitutional requirement that a defendant not be......
  • Request a trial to view additional results

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