Johns v. State, 385
| Court | Alabama Court of Appeals |
| Writing for the Court | THOMAS, J. |
| Citation | 13 Ala.App. 283,69 So. 259 |
| Parties | JOHNS v. STATE. |
| Docket Number | 385 |
| Decision Date | 17 June 1915 |
13 Ala.App. 283
JOHNS
v.
STATE.
No. 385
Court of Appeals of Alabama
June 17, 1915
Rehearing Denied July 19, 1915
Appeal from Circuit Court, Pike County; H.A. Pearce, Judge.
Sherman Johns was convicted of crime, and he appeals. Affirmed.
A.G. Seay, of Troy, for appellant.
W.L. Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.
THOMAS, J.
The only question presented in this case is as to whether or not an acquittal of a defendant on a charge of "selling, bartering, giving away, exchanging, or delivering" to another spirituous, vinous, or malt liquors in violation of a town ordinance is a bar [13 Ala.App. 284] to a subsequent prosecution of defendant on a charge of "keeping or having in his possession for sale or other unlawful disposition" spirituous, vinous, or malt liquors in violation of state law, when his conviction upon the latter charge is sought upon the same, or substantially the same, evidence as was introduced against him on the former charge, and when that evidence is of a circumstantial character, and is sufficient to warrant a conviction for the latter charge, that is, "keeping or having in his possession for sale or unlawful disposition" such liquors, but is wholly insufficient [69 So. 260] to warrant a conviction for the former charge, that is, selling, bartering, giving away, exchanging, or delivering such liquors, since there was no evidence whatever of either a sale, barter, giving away, exchange, or delivery, but the only evidence was evidence of the possession by defendant of a large quantity of prohibited liquors, 33 gallons in pints and half pints, at a place other than in his dwelling, and from which facts it may be inferred that defendant had such liquors for purposes of sale or other unlawful disposition, though it cannot be inferred that he had in fact sold or otherwise actually and unlawfully disposed of any part of such liquors. Preist v. State, 5 Ala.App. 171, 59 So. 318; Hodge v. State, 11 Ala.App. 185, 65 So. 676; Watson v. State, 11 Ala.App. 199, 65 So. 689; Herring v. State, 11 Ala.App. 202, 65 So. 707; Salley v. State, 9 Ala.App. 82, 64 So. 185; Fuller Bill (Gen. & Loc. Acts Sp.Sess. 1909, p. 64, § 4).
Such evidence might, as said, well sustain a conviction for keeping or having in possession for sale or other unlawful disposition such liquor, but certainly would not sustain a conviction for an actual sale, barter, exchange, delivery, or giving away. Does the fact, therefore, [13 Ala.App. 285] that on this evidence the defendant was previously acquitted on a trial under the charge of selling, etc., bar his subsequent prosecution on that evidence under the present charge of keeping for sale, etc.?
It seems to us not; and in support of this view we quote approvingly as follows from 17 Am. & Eng.Ency.Law (2d Ed.) 596 et seq. to wit:
"The prohibition of the common law and of the Constitution is against a second jeopardy for the 'same offense,' that is, the same identical act and crime, or as expressed in a number of cases, to entitle a defendant to plead successfully former jeopardy, the offense charged in the two prosecutions must be the same in law and in fact Thus an acquittal...
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State v. Marchindo, 5165.
...sale and keeping a place in which they may be so sold (State v. Moriarty, 50 Conn. 415); keeping for sale and selling ( Johns v. State, 13 Ala. App. 283, 69 So. 259); selling to a minor and selling otherwise illegally ( Ruble v. State, 51 Ark. 170, 10 S.W. 262); selling on Sunday and sellin......
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Whitehead v. State, 6 Div. 335
...offense from the one here charged, and the demurrers to the pleas were well taken and were sustained without error. Johns v. State, 13 Ala. App. 283, 69 So. 259; Id., 195 Ala. 695, 70 So. 1013; Hawkins v. State, 1 Port. 475, 27 Am.Dec. 641; Gorden v. State, 71 Ala. 315; Foster v. State, 39 ......
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State v. Marchindo, 5165.
...sale and keeping a place in which they may be so sold (State v. Moriarty, 50 Conn. 415); keeping for sale and selling (Johns v. State, 13 Ala. App. 283, 69 South. 259); selling to a minor and selling otherwise illegally (Ruble v. State, 51 Ark. 170, 10 S. W. 262); selling on Sunday and sell......
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Bell v. State, 6 Div. 213
...Acts 1915, p. 724. It therefore follows that the court's action in sustaining the state's demurrers was without error. Johns v. State, 13 Ala.App. 283, 69 So. 259. On the trial of this case, state witness Steele testified to the search of defendant's premises made by himself and other offic......
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State v. Marchindo, 5165.
...sale and keeping a place in which they may be so sold (State v. Moriarty, 50 Conn. 415); keeping for sale and selling ( Johns v. State, 13 Ala. App. 283, 69 So. 259); selling to a minor and selling otherwise illegally ( Ruble v. State, 51 Ark. 170, 10 S.W. 262); selling on Sunday and sellin......
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Whitehead v. State, 6 Div. 335
...offense from the one here charged, and the demurrers to the pleas were well taken and were sustained without error. Johns v. State, 13 Ala. App. 283, 69 So. 259; Id., 195 Ala. 695, 70 So. 1013; Hawkins v. State, 1 Port. 475, 27 Am.Dec. 641; Gorden v. State, 71 Ala. 315; Foster v. State, 39 ......
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State v. Marchindo, 5165.
...sale and keeping a place in which they may be so sold (State v. Moriarty, 50 Conn. 415); keeping for sale and selling (Johns v. State, 13 Ala. App. 283, 69 South. 259); selling to a minor and selling otherwise illegally (Ruble v. State, 51 Ark. 170, 10 S. W. 262); selling on Sunday and sell......
-
Bell v. State, 6 Div. 213
...Acts 1915, p. 724. It therefore follows that the court's action in sustaining the state's demurrers was without error. Johns v. State, 13 Ala.App. 283, 69 So. 259. On the trial of this case, state witness Steele testified to the search of defendant's premises made by himself and other offic......