Garner v. State
| Citation | 57 So. 502,3 Ala.App. 161 |
| Parties | GARNER v. STATE. |
| Decision Date | 18 January 1912 |
| Court | Alabama Court of Appeals |
Appeal from City Court of Anniston; A. H. Alston, Judge.
Jack Garner was convicted of a violation of the prohibition law and he appeals. Reversed and remanded.
Knox Acker, Dixon & Blackmon, for appellant.
R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.
DE GRAFFENRIED, J.
No proposition is more familiar than that a man cannot be indicted for an offense, and under that indictment suffer a conviction of an offense not named in the indictment. A man cannot be indicted for the larceny of a horse, and under that indictment be convicted of the larceny of a mule. In the present case the defendant was indicted for manufacturing, selling, offering for sale, giving away furnishing at a public place, or otherwise disposing of spirituous, vinous, or malt liquors. While the language of the indictment was broad, it did not contain an averment that the defendant did "let or suffer a person, firm, or corporation to use any premises which he owned or controlled for the illegal sale or manufacture, or other unlawful disposition, of spirituous vinous, or malt liquors," which is made a misdemeanor under the provisions of section 1 of an act entitled "An act to further suppress the evils of intemperance," etc., approved August 25, 1909. General and Local Acts Special Session 1909, p. 63.
On the trial the state offered evidence tending to show that within the period covered by the indictment the defendant, in violation of law, had sold intoxicating liquor to one W. H Smith. Smith testified that he bought the liquor from the defendant in a certain room, in which the evidence showed, without conflict, that there was kept a soft-drink stand, and that the liquor was sold to him by the defendant during the business hours of the day. Smith testified further than when he bought the liquor he was accompanied by Ralph Mackay, saying on that subject: The defendant, on the other hand, testified not only that he did not...
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