Guarreno v. State

• Decision Date: 20 December 1906
• Parties: GUARRENO v. STATE.
• Court: Alabama Supreme Court

42 So. 833

148 Ala. 637

GUARRENO v. STATE.

Supreme Court of Alabama

December 20, 1906

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

Jasper Guarreno was convicted of selling intoxicating liquors, and he appeals. Affirmed.

The defendant was tried upon the following indictment: "The grand jury of said county charge that, before the finding of this indictment, Jasper Guarreno, sold spirituous, vinous, or malt liquors without license and contrary to law; that Jasper Guarreno did sell, give away, or otherwise dispose of spirituous or malt liquors without a license, and contrary to law; that Jasper Guarreno did unlawfully sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, or other intoxicating beverages, not in an incorporated city or town having police jurisdicton both day and night, against the peace and dignity of the state of Alabama."

Defendant demurred to the first count: "(1) Because it does not specify the place where such alleged violation of the prohibition law was committed, as is required by section 5077 of the Code of 1896, when charging a violation of a local prohibition law. (2) Because it does not allege that said offense was committed outside of an incorporated town or city having police regulation both of day and night, and not in a place otherwise especially exempted by law. (3) Because it does not allege a violation of any prohibition statute, by alleging the name of the place or locality. (4) Because it does not allege that the location where the sale took place was in a place not incorporated and not having police regulation both day and night. (5) It charges a violation of the revenue law, and not of the prohibitory law within a prohibited territory, and the general law under which said indictment was drawn has been repealed by the local statute. (6) Because of the act of the Legislature establishing a prohibition district in Jefferson county, with the exception of incorporated towns and cities having police regulation and the count in the indictment does not allege that the sale did not take place outside the exception. (7) Same as the sixth. (8) From said count it does not appear whether defendant is charged with a violation of the general state law or special prohibition law." The following grounds were assigned to the second count: "(1) That it contains three alternative or disjunctive averments, and two of said averments--that is, 'give away' and 'otherwise dispose of' spirituous, vinous, or malt liquors--does not charge any criminal offense known to the law or in violation of the special statute of Jefferson county. (2) The indictment charges that the defendant did give away or otherwise dispose of spirituous, vinous, and malt liquors and this is not unlawful, unless it is charged to have been done in violation of some local law prohibiting the same, and the indictment does not allege in what prohibited locality the same was done. (3) All the demurrers assigned to count 1." To count 3 were assigned the following demurrers "(1) Because it is not charged that the sale was not in a town or city having police regulation both by day and night, but uses the words 'police jurisdiction,' instead of 'regulation.' " These demurrers were overruled.

The evidence tended to show that Roberts purchased a bottle of something from a woman at Guarreno's store who was represented to him to be the wife of Guarreno, that it tasted like beer, and that he carried the bottle into the grand jury room, and before the grand jury sitting for the city court of Bessemer. Motion was made to exclude all this evidence because immaterial, irrelevant, and illegal. The motion was overruled. This witness also testified to other sales by the same person. Motion was made to exclude this evidence because illegal and irrelevant, and because the state had elected to prosecute for another sale. A. C. Mitchell and H W. Sweet were introduced by the state and shown to be members of the grand jury that preferred this indictment, and each testified that he knew the witness Roberts and knew the defendant; that the witness Roberts brought a bottle of liquid into the grand jury room which he swore he had bought from the defendant; that said bottle was opened in the presence of the grand jury, and that the witnesses tasted the liquid, the contents of the bottle, and that it was beer. Objection was interposed to each part of this testimony, and was overruled. Witnesses further testified that the liquor had no intoxicating effect upon them, but that they knew it was beer from its taste and appearance; that they were not experts on beer, but they were pretty good judges of it. Dennis and Hunnicut were introduced as witnesses by the state, and were asked by the solicitor: "Did you ever buy...