Hallmark v. State

• Decision Date: 02 September 1924
• Docket Number: 7 Div. 924.
• Citation: 101 So. 905,20 Ala.App. 281
• Parties: HALLMARK v. STATE.
• Court: Alabama Court of Appeals

101 So. 905

20 Ala.App. 281

HALLMARK v. STATE.

7 Div. 924.

Court of Appeals of Alabama

September 2, 1924

Rehearing Denied Oct. 7, 1924.

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Tim Hallmark was convicted of violating the prohibition law, and he appeals. Affirmed.

Certiorari denied by the Supreme Court in Ex parte Hallmark, 101 So 906.

Walter S. Smith, of Lineville, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The indictment contained two counts. The first count charged the manufacture of prohibited liquors; the second count charged the possession of a still. There was demurrer to the first count on the ground that it stated the offense in the alternative and failed to specify what constituted the liquors or beverages therein mentioned. The first count charged, in the words of the statute, that the defendant "did distill, make, or manufacture alcoholic spirituous, malted, or mixed liquors or beverages, some part of which was alcohol," etc. The second count charged that the defendant "manufactured, sold, gave away, or had in possession a still, apparatus, appliance, or some device or substitute for a still, apparatus, or appliance to be used for the purpose of manufacturing prohibited liquors or beverages," etc.

There was demurrer to the second count on the grounds that it failed to "specify or particularize what constitutes the apparatus therein mentioned"; "that it states the offense in the alternative"; and "that it fails to specify the substitute for the still, apparatus, or appliance therein mentioned."

The count was in the words of the statute. The indictment sufficiently charged the offenses in the statutory language. Miller v. State, 19 Ala. App. 229, 96 So. 718; Masters v. State, 18 Ala. App. 614, 94 So. 249; McLain v. State, 15 Ala. App. 24, 72 So. 511; Porter v State, 15 Ala. App. 218, 72 So. 776. The demurrers to the indictment were properly overruled.

It was competent for the state's witness Gay, after having been first qualified, to testify that from his experience and knowledge beer at the stage found by the officers raiding the still had alcohol in it. Mitchell v. State, 19 Ala App. 248, 96 So. 653; Veal v. State, 19 Ala. App. 168, 95 So. 783.

The oral charge of the court does not appear in the transcript. Where the oral charge is omitted from the transcript on appeal, no error prejudicial to an appellant in refusing special requests for instructions is shown, unless the contrary appears, and the presumption is indulged that the oral charge substantially covered the subject of such refused special request for instruction. Gay v. Taylor, 208 Ala. 376, 94 So. 473.

There is no error in the record. The judgment of the circuit court is affirmed.

Affirmed.

On Rehearing.

SAMFORD J.

This cause was originally submitted January 17, 1924, and on February 5, 1924, was affirmed, with an opinion prepared by FOSTER, J., which we here adopt as applicable to the propositions then presented.

On April 8, 1924, on application, supported by affidavits, a rehearing was granted, the opinion was withdrawn and the cause restored to the docket and certiorari awarded to bring up the entire record. On this submission the return to the certiorari does not show a change of the record from that on the original submission.

As now presented it is insisted that there is only one count in the indictment, joining two separate felonies in the same count which is not...