Jinright v. State

• Decision Date: 05 December 1929
• Docket Number: 4 Div. 451.
• Citation: 125 So. 606,220 Ala. 268
• Parties: JINRIGHT v. STATE.
• Court: Alabama Supreme Court

125 So. 606

220 Ala. 268

JINRIGHT v. STATE.

4 Div. 451.

Supreme Court of Alabama

December 5, 1929

Certiorari to Court of Appeals.

Jim Jinright was convicted of violating the prohibition law, and appealed to the Court of Appeals. The judgment of conviction being there reversed, the State applies for certiorari to the Court of Appeals, to review and revise the judgment and conviction of said court in Jinright v. State, 125 So. 604. Writ granted, judgment of Court of Appeals vacated and cause remanded.

Charlie C. McCall, Atty. Gen., and William P. Cobb, Asst. Atty. Gen and J. M. Loflin, Sol., of Enterprise, for the State.

J. C Fleming, of Elba, opposed.

BOULDIN J.

"To sell, offer for sale, keep or have in possession, barter, exchange or to give away, *** prohibited liquors, *** or to accept the delivery of, or to receive, have in possession, or possess in this state, any of said prohibited liquors and beverages as defined by the existing laws of the state of Alabama, in any quantity whatsoever," is a violation of the prohibition laws of this state. Code, § 4621. (Italics supplied.)

Each of the several offenses thus defined is punishable by fine, or by fine and imprisonment. Code, § 4622, as amended, Gen. Acts 1927, p. 714. "When offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative." Code, § 4546.

In keeping with this statute of long standing, the lawmakers have incorporated in the Code a form of indictment to cover offenses under section 4621. This form, No. 101, reads:

"A. B. did buy, sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship, prohibited liquors, contrary to law, against etc."

Code forms are declared by statute to be sufficient in all cases to which they are applicable. Code, § 4556. Notwithstanding this statute, the Court of Appeals takes the view that the form prescribed is fatally defective, when assailed by demurrer.

Following the former decision of that court in Griffin v. State, 22 Ala. App. 369, 115 So. 769, it is held the alternative averment that the accused "did buy prohibited liquors" charges no offense known to the law. On this premise the further holdings in the opinion under review are predicated.

Is the premise correct? "Buy" and "purchase" are convertible terms. This by common usage as well as dictionary definition. Webster's New International Dictionary, "Buy."

"To buy or purchase imports a sale. Delivery is an essential part of a sale of a chattel. To "accept delivery of," to "receive" into possession, to "have possession" of prohibited liquors is expressly declared an offense under Code, § 4621.

In the law of sales, a symbolical or constructive delivery and consequent possession is sometimes recognized. Such is not the character of delivery and possession meant in the above section. It means delivery into actual possession, a manucaption or dominion over the chattel, though not necessarily within the possessor's immediate presence. The form of indictment will be construed in connection with the statute to which it refers.

Receiving prohibited liquors into possession, having them in possession, whether by manufacture, gift, or purchase, and whether held for sale or for personal use, is an offense under our law. Harbin v. State, 210 Ala. 55, 97 So. 426; Wilson v. Orr, 210 Ala. 93, 97 So. 133; Bridgeforth v. State, 20 Ala. App. 20, 100 So. 564.

It follows a man cannot "buy" prohibited liquors in the ordinary sense, acquiring actual possession thereof, without a violation of the prohibition law of Alabama. A charge that the accused did buy prohibited liquors is a charge that he accepted delivery, received same into his possession.

"*** The person purchasing or to whom prohibited liquors and beverages or any of them have been sold or otherwise disposed of shall in all cases be a competent witness to prove the unlawful act, and no person who testifies with respect to any unlawful act under this statute or...