Fitzpatrick v. State

• Citation: 169 Ala. 1,53 So. 1021
• Parties: FITZPATRICK v. STATE.
• Decision Date: 06 July 1910
• Court: Supreme Court of Alabama

53 So. 1021

169 Ala. 1

FITZPATRICK v. STATE.

Supreme Court of Alabama

July 6, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from City Court of Bessemer; William Jackson, Judge.

Dink Fitzpatrick was convicted for violating the prohibitory liquor law, and he appeals. Affirmed.

Omitting the formal heading the affidavit is as follows: "Says that he has probable cause for believing, and does believe that Dink Fitzpatrick, alias Will Fitzpatrick, within twelve months before making this affidavit in said county, and since August 25, 1909, sold or offered for sale, or kept for sale or otherwise disposed of, spirituous, vinous, or malt liquors, contrary to law, or maintained an unlawful drinking place, contrary to the statutes in such cases made and provided, or maintained a liquor nuisance contrary to law." The demurrers take the point that the affidavit or complaint does not charge any offense prohibited by law, that different offenses are charged therein, and that the act is unconstitutional and void, and because it does not appear that the proper motive was given as required by law.

The following charges were refused the defendant: (1) "I charge you that, if you believe from the evidence that the defendant kept this whisky for his own use in his bedroom you cannot convict the defendant." (2) "I charge you that, if you believe from the evidence that the defendant's bedrooms were not connected with the soft drink stand, you cannot convict the defendant." (3) "I charge you that, if you find from the evidence that defendant's room was his dwelling, and had no connection with any soft drink stand, you cannot convict."

F. E Blackburn, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL C.J.

The appeal in this case is prosecuted from a judgment of conviction in the city court of Bessemer for a violation of the prohibition law. The cause was tried on affidavit and warrant taken out before the Honorable William Jackson, judge of the city court of Bessemer, resulting in a verdict of guilty by the jury, and judgment thereon by the court.

A demurrer containing several stated grounds, interposed to the "affidavit and warrant," was overruled. Motion also to quash the affidavit was made and overruled, but, as the bill of exceptions fails to show any exception reserved to this action of the court, no question can now be raised here on this ruling.

The affidavit substantially followed the language of the statute (Sp. Acts 1909, p. 63), and was therefore sufficient, and the grounds of demurrer addressed in this respect were not well taken. It is permissible, where offenses may be committed by different means, to charge the same in the alternative. Cr Code 1907, §§ 7149-7151. So, also, where the misdemeanors are of the same character and are subject to the same punishment, two or more may be charged in the same affidavit. The grounds of demurrer addressed to the affidavit in this respect were not well taken, and hence were properly overruled. The act under which the prosecution was commenced being a general law, notice of its proposed enactment was not required to be given under the Constitution. There are several grounds, general...