Johnson v. State, 6 Div. 727.
| Citation | 130 So. 777,222 Ala. 90 |
| Decision Date | 16 October 1930 |
| Docket Number | 6 Div. 727. |
| Parties | JOHNSON v. STATE. |
| Court | Supreme Court of Alabama |
Rehearing Denied Nov. 28, 1930.
Certiorari to Court of Appeals.
Petition of Linda Johnson for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Johnson v. State, 130 So. 923.
Writ denied.
L. D Gray, of Jasper, for petitioner.
Charlie C. McCall, Atty. Gen., for the State.
The petitioner was convicted of the offense of having on her person one pint of whisky, as a misdemeanor. Section 4621, Code 1923. The jury assessed a fine of $50, and after adjudging her guilty in accordance with the verdict of the jury, the judgment recites: "It appearing to the court that the defendant having been, on a former occasion convicted of violating the prohibition law of the State of Alabama, it is therefore the order and judgment and sentence of the court that the defendant, in addition to the payment of the fine and costs assessed against her in this case perform hard labor for Walker County for a period of ninety days."
Section 4622 declares that: "Any violation of the preceding section shall be a misdemeanor, punishable by a fine of not less than fifty nor more than five hundred dollars, to which, at the discretion of the court or judge trying the case, may be added imprisonment in the county jail or confinement at hard labor for the county for not more than six months for the first conviction; and on the second and every subsequent conviction of a violation of the preceding section, the offense shall, in addition to a fine within the limits above named, be punishable by confinement at hard labor for the county for not less than three nor more than six months, to be imposed by the court or judge trying the case." (Italics supplied.)
Section 4644, a part of the same article and chapter of the Code, prescribes the form and necessary averments of indictments, and provides that: "In any prosecution for a second or subsequent offense, it shall not be requisite to set forth in the indictment, information, complaint or affidavit, the record of a former conviction, but it shall be sufficient briefly to allege such conviction," etc.
Construing these several statutes as in pari materia, it is clear that they contemplate that to deprive the trial court of the discretion invested by section 4622 in imposing jail or hard labor sentence, the indictment or...
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Palmer v. State, 5 Div. 262
...in codes without change become part of statutes by legislative adoption. Hurt v. Knox, 126 So. 110, 220 Ala. 448.' See also Johnson v. State, 222 Ala. 90, 130 So. 777.' Moreover, as noted by Mr. Justice Simpson, in Akers v. State ex rel. Witcher, 283 Ala. 248, 215 So.2d '. . . (W)e should, ......
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Yates v. State
...a further maximum for a third or subsequent conviction thereby enlarging section 4622, Code of 1923. That Act was not mentioned in the Johnson case, supra, though it had enacted. The amendment did not affect the question discussed. That was the only difference between section 4622, Code of ......
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Griffin v. State, 3 Div. 31
...be shown to be qualified as to sense of smell in order to state their judgment as to whether the jugs contained whiskey. Johnson v. State, 222 Ala. 90, 130 So. 777; McDuffie v. State, 27 Ala.App. 403, 174 So. 801, certiorari denied 234 Ala. 411, 174 So. 802. Section 93 of Title 29 includes ......
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Griffin v. State, 4 Div. 372
...v. State, 20 Ala.App. 505, 103 So. 305. Suffice to say that the Anderson case, supra, was specifically overruled in Johnson v. State, 222 Ala. 90, 130 So. 777, 778, wherein it was 'Where it appears, as here, that the witness inspected the bottle, and smelled or tasted the contents thereof, ......