Johns v. State

• Decision Date: 17 June 1915
• Docket Number: 385
• Parties: JOHNS v. STATE.
• Court: Alabama Court of Appeals

69 So. 259

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 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 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, 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 or conviction on a prosecution for keeping a gambling house will not bar a prosecution for gambling or for being a common gambler, nor will a conviction on a prosecution for gambling bar a prosecution for keeping a gambling house. It is perhaps impossible to lay down an infallible test for determining the identity of offenses in all cases. But a test which is of almost universal application is whether the facts required to support the second indictment would have been sufficient, if proved, to have procured a conviction under the first indictment. If they would be, the offenses are identical. That evidence tending to establish the guilt of the accused was properly admitted against accused under a previous indictment against him for another offense constitutes no bar to his indictment." Am. & Eng.Ency., supra; Const. 1901, § 9.

From 12 Cyc. 280, we quote on the same subject, as follows:

"Several rules have been laid down by the authorities for determining whether the crimes are identical. One test is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first, and if this is the case, then the crimes are assumed to be identical." Cyc., supra.

This is not the case here, as before seen; and we have no hesitancy, therefore, in holding that the former acquittal of defendant under a charge of selling, exchanging, bartering, giving away, or delivering liquors in violation of a municipal ordinance on the same evidence as was here introduced is not a bar to this prosecution for keeping or having in possession for sale or other unlawful disposition such liquors in contravention of state statutes. See Harrison v. State, 36 Ala. 248; Foster v. State, 39 Ala. 229; Gordon v. State, 71 Ala. 315; Dominick v. State, 40 Ala. 680, 91 Am.Dec. 496; State v. Standifer, 5 Port. 523; Bowen v. State, 106 Ala. 178, 17 So. 335.

Prior to the enactment of section 1222 of the Code, the general rule was that in no case would a prosecution for a violation of a municipal ordinance bar a subsequent prosecution under a state statute, although the latter prosecution be based on the same act as the first, and although the crime denounced by the ordinance was identically the same as that denounced by the statute. Am. & Eng.Ency.Law, supra, p. 605; Englehardt v. State, 88 Ala. 100, 7 So. 154; Mobile v. Allaire, 14 Ala. 400.

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