Howard v. State

• Citation: 15 Ala.App. 411,73 So. 559
• Decision Date: 07 September 1916
• Docket Number: 6 Div. 79
• Parties: HOWARD v. STATE.
• Court: Alabama Court of Appeals

73 So. 559

15 Ala.App. 411

HOWARD v. STATE.

6 Div. 79

Court of Appeals of Alabama

September 7, 1916

On Rehearing, October 19, 1916

Appeal from Law and Equity Court, Walker County; J.J. Curtis, Judge.

Tom Howard was convicted of violating the prohibition law, and he appeals. Affirmed.

Lacy &amp Lacy, of Jasper, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BROWN J.

The constitutionality of section 12 of the act commonly designated "the Bonner Anti-Shipping Bill" (Acts 1915, pp. 39-49) was sustained by the Supreme Court in Southern Express Co. v. Whittle, 69 So. 652, and the appellant's contention that the act is unconstitutional cannot prevail.

The state, after all the evidence was introduced, elected to prosecute under the first and fourth counts of the complaint and the trial resulted in a conviction under the fourth count only. The first count, as has been repeatedly ruled, is in the form prescribed by the statute and was not subject to the demurrers. Arrington v. State, 69 So. 385, affirmed by the Supreme Court in Ex parte Arrington, 70 So. 1012; Bush v. State, 67 So. 847; Harrison v State, 69 So. 383; Whaley v. State, 69 So. 384. The fourth count follows the language of section 12 of the Bonner Anti-Shipping Law, supra, and was likewise sufficient. Kirk v. State, 70 So. 990; authorities supra.

It may be conceded that a passenger with bona fide transportation from one point in this state to a point in another state is an interstate passenger and within the commerce clause of the federal Constitution giving to Congress exclusive power to regulate commerce between the several states and territories ( Wabash, St. Louis & Pacific Ry. Co. v. Illinois, 118 U.S. 557, 7 Sup.Ct. 4, 30 L.Ed. 244), and still, under the evidence in this record, the issues were properly submitted to the jury.

The sheriff, who was examined as a witness in behalf of the state, testified that he found the defendant with a suit case full of whisky and two quarts wrapped in paper bags on the train between America Junction and Parrish in Walker county on the 22d day of May, 1915; that, besides the two quarts wrapped in paper, there were nine pints of whisky in the suit case; that, when he discovered the suit case and started to pick it up, the defendant said, "That is mine;" that the suit case and the whisky, wrapped in paper when seized, were on the opposite side of the aisle of the car from where the defendant was seated; that some of the whisky had been taken out of one of the quart bottles; that the defendant was arrested, and when the train reached Parrish he gave bond for his appearance and was released from custody and requested the sheriff to deliver the suit case and whisky to him, which request was refused.

The defendant offered evidence tending to show that the suit case and two quarts of the whisky belong to him; that the other whisky belonged to some other men who were on the train, but that defendant did not know that it was in his suit case until the sheriff seized and opened it; that the other men were on the train, but in a different car from where defendant and the whisky were located when discovered by the sheriff. The evidence on the part of the defendant further tended to show that the defendant and two of the other men who defendant claimed had whisky in his suit case lived in Mississippi; that they were working on a bridge crew for the Southern Railway; that they had been working at Parrish in Walker county on the day before the arrest, and the foreman and crew had suspended the work and gone to Birmingham to get their pay, and while there defendant bought two quarts of whisky from a saloon (this transaction taking place before saloons were closed in Birmingham); that two of the other men then borrowed his suit case and put it on the train, and he did not know that they put whisky in it; that defendant put his whisky in the suit case before the other men borrowed it from him; that another man, without asking his permission and unbeknown to him, put three pints of the whisky in the suit case; and the defendant testified that the first he saw of his suit case after they left Birmingham was when he walked through the car and put a suit case off at Cordova for "a lady." The defendant testified that at the time he was arrested he was on his way to Mississippi; that he did not buy a ticket at Birmingham for any point in Mississippi, and had no such ticket; but that he had transportation furnished by the company which was good for any place along that line; and that this transportation had been taken up by the conductor.

The state's testimony in rebuttal tended to show that when defendant was arrested he was told by the sheriff that he had more whisky in his possession than the law allowed; that he did not deny that it was his, but claimed that, as he was carrying it to Mississippi, the sheriff had no right to disturb him.

The statute in force at the time of the defendant's arrest made it unlawful for any person, firm, or corporation to receive or accept for delivery, or to possess or have in possession at any time, whether in one or more places, more than one-half gallon of spirituous liquors, and section 13 of the act provides:

"That any of the following facts shall constitute prima facie evidence that the liquors mentioned in the subdivisions of this section, respectively, are kept, or had in possession for sale, contrary to law, or for other unlawful disposition thereof: *** (1) The possession of more than one-half gallon of spirituous liquors at any one time, whether in one or more places," etc.

The passage of such statutes has been sustained as a legitimate exercise of legislative power, and without constitutional objection. Ex parte Woodward, 181 Ala. 106, 61 So. 295; Southern Express Co. v. Whittle, 69 So. 652; Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021; Underhill, Criminal Evidence, § 24a. Under this statute, when the state offered proof showing that the defendant had in his possession more than one-half gallon of spirituous liquors, the state made out a prima facie case, and the presumption of law arises that the liquors are kept for an unlawful purpose. Wynn v. State, 11 Ala.App. 182, 65 So. 687. This presumption of law, unlike a presumption of fact, is not entirely overcome by countervailing testimony, no matter how strong, but must be accorded such weight as produces conflict in the evidence and will carry the case to the jury. Wynn v. State, supra; Patterson v. Milligan, 12 Ala.App. 338, 66 So. 914; Roman, Trustee, v. Lentz et al., 177 Ala. 71, 58 So. 438. Aside from this rule, which required the submission of the cause to the jury, under the evidence in this case the question as to whether the defendant had knowledge that all this liquor was in his suit case, and was a bona fide interstate passenger carrying the suit case as baggage, or was carrying it for unlawful disposition in this state, was a question of fact for the jury. In Adams Express Co. v. Kentucky, 206 U.S. 138, 27 Sup.Ct. 608, 51 L.Ed. 992, it was said: "It is, of course, a question of fact whether a carrier is confining itself strictly to its business as a carrier or participating in illegal sales."

The character of the defendant's transportation was not shown, further than that it was furnished by the company and was good for any destination on that line of railway; and, besides, the defendant himself put one suit case off "for a lady" at Cordova. Whether it was of the same character as that seized by the sheriff was not shown, neither is it made to appear that the lady accompanied the other suit case.

"When the commerce clause of the federal Constitution is invoked as a protection to traffic in intoxicating liquors, the courts are not precluded from inquiry into methods and practices to determine whether the transactions involved constituted legitimate interstate commerce or are colorable merely and intended to evade and defeat the full operation of the criminal laws of the state." State v. Kirmeyer, 88 Kan. 589, 128 P. 1114; Adams Express Co. v. Kentucky, supra; Cook v. Marshall County, 196 U.S. 261, 25 Sup.Ct. 233, 49 L.Ed. 471; Austin v. Tenn., 179 U.S. 343, 21 Sup.Ct. 132, 45 L.Ed. 224.

The question as to whether the defendant had possession of all the whisky, and for what purpose, was for the jury, and charges A, B, C, D, F were well refused as invasive of the province of the jury.

Section 19 of the Bonner Law provides that:

"This act shall be construed in harmony with all statutes of the

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