Hauser v. State

• Court: Alabama Court of Appeals
• Citation: 60 So. 549,6 Ala.App. 31
• Parties: HAUSER v. STATE.
• Decision Date: 04 December 1912

60 So. 549

6 Ala.App. 31

HAUSER v. STATE.

Court of Appeals of Alabama

December 4, 1912

Rehearing Denied Dec. 17, 1912.

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Jacob J. Hauser was convicted of violating the prohibition law, and appeals. Affirmed.

Charge "D" is as follows: "The mere fact that liquor was found on the premises, without more, would not make the defendant guilty, and, if the jury do not find beyond all reasonable doubt that the liquor was kept for an unlawful purpose, as charged in this case, then you should find the defendant not guilty."

Webb &amp McAlpine, of Mobile, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

The Supreme Court have held, after most careful consideration and painstaking and elaborate discussion, that section 32 of the act approved August 25, 1909, commonly known as the "Fuller Bill" (see Gen. & Loc. Acts Sp. Sess. 1909, p. 63), was constitutional. Alford v State ex rel. Atty. Gen., 170 Ala. 178, 54 So. 213, Ann Cas. 1912C, 1093. That section provides, in substance, that all prosecutions for a violation of any of the provisions of the act, or any other act for the suppression of the evils of intemperance, including all prosecutions for a violation of the auxiliary prohibition statute approved August 9, 1909 (definitely described in the section), may be begun by affidavit, as well as by indictment, and that, when begun by affidavit, the person charged shall not have the right to demand that a grand jury shall prefer an indictment for the alleged offense, but the prosecution may continue no matter in what court or before what judge the trial shall be had, upon the affidavit upon which it was originally begun, etc.; that, if the prosecution is begun before a court in which jury trials are provided for, the defendant may, within the time fixed by the section, file a demand for a jury trial, in which event such jury trial shall be allowed, but, if the prosecution is begun before a court or judge as to which or whom no provision is made for a jury trial, the court or judge, if he has jurisdiction to try such case, shall proceed with the trial, and, if the party charged is convicted, he may appeal to the circuit or other court of like jurisdiction in the county, etc., and there, in such higher court, be entitled to a jury trial, as in other cases of appeal, in criminal cases, etc. Acts Sp. Sess. 1909, p. 63, § 32.

The defendant was arrested on affidavit and warrant, returnable before the judge of the inferior criminal court of Mobile county, charging that the defendant "sold, offered for sale, kept for sale, or other unlawful disposition, or otherwise disposed of, spirituous, vinous or malt liquors." The judge of said inferior court or said inferior court is one "as to whom or which no provision is made for a jury trial" within the contemplation of said section 32 of said "Fuller Bill." Local Acts 1898-99, p. 1164, as amended by Local Acts 1907, p. 82. Upon arraignment there, the defendant demanded a jury trial, which was refused, and upon regular trial there had was convicted in said court of said offense charged. He appealed the case to the city court of Mobile, a court having jurisdiction of such appeals, within the meaning of said section 32 of the said Fuller Bill, where, upon complaint filed by the solicitor, he had a regular jury trial, and was convicted. In the latter court, before the trial was entered upon, he moved to strike the case from the docket upon the ground, quoting from the motion, "that he demanded a jury trial in the inferior criminal court, and cannot be further prosecuted under such complaint without an indictment," which motion was overruled by said city court; and on appeal here the defendant's counsel insists that said court was in error in so doing, because they say in substance, as argued in their brief, the said Fuller Bill, which, by section 32 thereof, as hereinbefore substantially set out, furnishes the only authority for denying the defendant the right to demand a jury, when brought for trial before the said inferior criminal court, has been repealed in Mobile county by the fact that Mobile county has, since the passage of said Fuller Bill and other kindred or auxiliary prohibition statutes, held a "local option" election and voted in liquor under the power and provisions of subsequent enactments, to wit, those companion statutes commonly known as the "Parks Bill" and the "Smith Bill" (Gen. Acts 1911, pp. 26 and 249, respectively).

Waiving this time, without intending thereby to commit ourselves for the future on, a question not presented in either brief, but occurring to us, as to whether or not an appeal is the proper method of raising the proposition we are now asked to determine, we will consider the proposition, since we are of opinion that appellant's position on it is untenable, and that a decision on it will likely save other appeals. The evidence shows without conflict that the alleged offense, if committed at all, as to which the evidence is conflicting, was committed without, and not within, the corporate limits of the city of Mobile. Assuming, for argument's sake, a matter not up for consideration, that the said Fuller Bill and all other prohibition statutes were repealed as to the corporate limits of the city of Mobile by the county local option election referred to, held under the statutes referred to, to wit, said Parks Bill and said Smith Bill, it does not follow that the repeal extended to the balance of the county; that is, to that part of it beyond the corporate limits of said city. When those statutes--the Smith and Parks Bills--were enacted, prohibition, with certain auxiliary statutes (including the said Fuller Bill), all intended to make prohibition effective, was the rule in this state, and the said Smith and Parks Bills were only intended to ingraft an exception upon this general rule by permitting the sale, etc., of liquors within certain territory therein defined, and that only upon certain conditions, to wit, the holding of a "local option" election by the people of the county, in which that certain excepted territory was situated, resulting in the majority favoring such sale.

It is true that the electors of the whole county vote upon the question, the county, by the provisions of the statutes being the unit for such purpose; but it is not true that when the result is in favor of the sale, etc., the right to sell, etc., is extended to the limits of the whole county, nor is it true that the other provisions of the prohibition statutes are suspended as to the whole county. The statute providing for the election and making the county the unit to vote on the question expressly confines the sale of liquors to the limits of incorporated cities and certain towns within the county voting favorably to such sale. Sections 10 and 11 of said Parks Bill (Gen. Acts 1911, p. 30), when paraphrased, read: "That if in any election held under the authority of this act a majority of legal votes cast in said election [referring to the county local option election which the act provides for] shall be for legalizing the manufacture and sale of said liquors, then liquors may be sold, etc., by dispensary or by private dealers, as may have been also determined by the majority in such election, under such regulations and restrictions as shall be provided by law." But says section 10 1/2 of the same act: "The sale of spirituous, vinous, malt and other intoxicating drinks and beverages * * * shall not be permitted outside the...