Holt v. State

• Decision Date: 16 May 1939
• Docket Number: 8 Div. 614.
• Citation: 193 So. 98,29 Ala.App. 100
• Parties: HOLT v. STATE.
• Court: Alabama Court of Appeals

193 So. 98

29 Ala.App. 100

HOLT v. STATE.

8 Div. 614.

Court of Appeals of Alabama

May 16, 1939

Rehearing Denied June 6, 1939.

Affirmed on Mandate Oct. 3, 1939.

Rehearing Denied Oct. 31, 1939.

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Burdette (alias J. B.) Holt was convicted of possessing counterfeit Alabama revenue stamps, and he appeals.

Reversed and remanded.

See also, Holt v. State, Ala.Sup., 193 So. 89.

Certiorari granted by Supreme Court in Holt v. State, 193 So 101.

Certiorari denied by Supreme Court in Holt v. State, 193 So 103.

Murphy & Pounders, of Florence, for appellant.

Thos S. Lawson, Atty. Gen., and Edwina Mitchell, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The conviction of this appellant was for the violation of Section 47 of the act known as the "Alabama Beverage Control Act." Extra Session 1936-1937, Genl. and Local Acts of Alabama, p. 40 et seq. (Bill passed by House and Senate February 2, 1937, notwithstanding veto, under Section 125 of Constitution).

The above section of said act created a new offense; and, it not being otherwise specially provided in said act, the penal features therein did not go into effect until sixty days after its passage. Code 1923, Section 5531.

Section 47 of said act, p. 80, reads as follows: "Counterfeit Stamps, Crowns or Lids: --That whoever manufactures, buys, sells, offers for sale, or has in his or its possession any reproduction or counterfeit of the Alabama Revenue Stamps, Crowns or Lids provided for in this Act, or stamps, crowns or lids used to identify articles sold and/or distributed by State Liquor Stores, is guilty of a felony and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than a year and a day, nor more than ten (10) years, and in addition, may be fined not less than Two Thousand ($2,000.00) Dollars, nor more than Ten Thousand ($10,000.00) Dollars."

The indictment upon which defendant was tried and convicted is as follows: "The Grand Jury of said county charge that before the finding of this indictment, Major Ingram and Burdette Holt, alias J. B. Holt, whose names are to the Grand Jury otherwise unknown, did buy or have in possession a reproduction or counterfeit of the Alabama Revenue Stamps provided for in the 'Alabama Beverage Control Act,' or stamps used to identify articles sold and or distributed by State Liquor Stores of Alabama, against the peace and dignity of the State of Alabama." It was filed in open court on 10th day of September, 1937.

Upon arraignment, and before pleading to the indictment, defendant in answer thereto interposed demurrers predicated upon several separate and distinct grounds. The principal insistences in this connection were in substance: (1) That the Alabama Beverage Control Act, which by its terms created the offense charged, had no application to, and was not in effect in, Lauderdale County, Alabama, said county being one of the so-called dry counties of this State; and in support of this insistence, the argument was, and is here, presented, that the appellate courts of this State have in the recent case of Williams v. State, 28 Ala.App. 73, 179 So. 915, certiorari denied 235 Ala. 520, 179 So. 920, definitely decided this question in line with the contention of appellant.

Upon consideration of this question here, the judges of this court were not in agreement, in consequence of which the question was certified to the Supreme Court for its opinion, as shown by the following:

"Certified question under Section 7311, Code 1923.

"To the Supreme Court of Alabama:

"Pending in this court is a case wherein, upon one of the controlling questions, the Judges of this court are unable to agree; hence, the abstract question is hereby certified to your court for an opinion thereon. In said case the defendant was indicted and convicted as for the violation of a certain section of the 'Alabama Beverage Control Act;' General Acts 1936-37. The alleged offense, if committed, was so committed in the County of Lauderdale, Alabama, which county voted 'No,' and thereby is one of the so-called 'Dry Counties' of this State. The offense involved in this prosecution was for a violation of Section 47 of said Alabama Beverage Control Act. Query: Is said section of said act in effect and operative in said dry county?

"In the case of Williams v. State, 28 Ala. App. 73, 179 So. 915, 916, certiorari denied by Supreme Court, 235 Ala. 520, 179 So. 920, is found, among many others, this statement: 'It is admitted that Walker county is a "dry" county, i. e., a county wherein a majority of the electors voting in the election provided for in section 51 of the aforementioned "Alabama Beverage Control Act" voted "No," and wherein the said act by its own terms did "not go into effect." '

"The foregoing is submitted, as stated, under the provisions of Section 7311, of the Code 1923.

"This February 9, 1939."

In response to the foregoing this court has just received an opinion which we here set out in full:

"The question here under consideration is whether section 47 of the Alabama Beverage Control Act of February 2, 1937, page 40 (at page 80) is effective in a county where a majority of the electors voting in said election voted 'no' on the question of whether the sale and distribution of alcoholic beverages shall be legal in that county.--See section 51 of the Act, p. 81.

"Section 47, supra, is as follows: 'Counterfeit stamps, crowns or lids: That whoever manufactures, buys, sells, offers for sale, or has in his or its possession any reproduction or counterfeit of the Alabama Revenue Stamps, Crowns or Lids provided for in this Act, or stamps, crowns or lids used to identify articles sold and/or distributed by State Liquor Stores, is guilty of a felony and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than a year and a day, nor more than ten (10) years, and in addition, may be fined not less than Two Thousand ($2,000.00) Dollars, nor more than Ten Thousand ($10,000.00) Dollars.'

"We have heretofore held that the Act is not effective in a 'dry' county, so as to authorize the possession of such liquor in that county by one who purchased it in a 'wet' county under authority of the Act. Williams v. State, 28 Ala.App. 73, 179 So. 915, certiorari denied 235 Ala. 520, 179 So. 920. That case gave emphasis to that feature of section 51, supra, which provided that 'this Act shall not go into effect in such [so called dry] County and all laws prohibiting the manufacture and sale of alcoholic liquors or beverages now in force and effect in Alabama shall remain in full force and effect in every such county.' And in the same section as to dry counties, 'the Statutes of Alabama prohibiting the manufacture, sale or distribution of alcoholic beverages shall remain in full force and effect.'

"Section 47, supra, was enacted to prevent evasions of tax features of the law, and if it does not apply in a dry county it would lose its value to a large extent and not accomplish the evident intent of the Legislature.

"There are other features of the Act which have application to dry counties notably section 18, p. 56, which provides for licenses to be issued for the sale in certain kinds of railroad cars for consumption while en route on the railroad. There may be others which we will not undertake to find.

"The Act should not be controlled by any certain isolated extracts from it, but rather by a study of the animating current which permeates it.

"The prohibition laws of Alabama in existence before the Alabama Beverage Control Act was enacted were complete in every detail. Many features existed merely to prevent evasions. An indictment in broad language was held to be sufficient and to embrace any device or substitute. Section 4644, Code; Noltey v. State, 225 Ala. 584, 144 So. 457. They are set out in Chapter 167, Code, consisting of sixteen articles--sections 4615 to 4800, and those enacted subsequent to the Code of 1923. Their purpose is declared to be to suppress the evils of intemperance. They create many offenses both felonies and misdemeanors.--See Slater v. State, 230 Ala. 320, 162 So. 130.

"When the Alabama Beverage Control Act, section 51, provided that it shall not go into effect in a dry county, and that all laws prohibiting the manufacture and sale of alcoholic liquors shall remain in force in them, we think it meant, as stated by the Court of Appeals in the Williams case, supra, that the said Act should not be there effective to the extent that it conflicts with existing laws which suppress the evils of intemperance and prohibit evasions and...