Jones v. State

• Decision Date: 29 June 1918
• Docket Number: 4 Div. 585
• Citation: 79 So. 151,16 Ala.App. 477
• Parties: JONES et al. v. STATE.
• Court: Alabama Court of Appeals

79 So. 151

16 Ala.App. 477

JONES et al. v. STATE.

4 Div. 585

Court of Appeals of Alabama

June 29, 1918

Appeal from Circuit Court, Coffee County; A.B. Foster, Judge.

Earnest Jones and others were convicted of manufacturing spirituous vinous, or malt liquors, and they appeal. Affirmed in part and reversed and remanded in part.

J.A Carnley, of Elba, for appellants.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

SAMFORD J.

The judgment entry alone recites the nol. pros. as to Riley Wise, Homer Wise, and John Wise, who were jointly indicted with these defendants, and then proceeds to recite the verdict of the jury convicting these defendants, and the judgment rendered thereon, as follows:

"Defendants Earnest Jones, Joe Williams, and Monroe Terry being in open court, and to the indictment as read to the jury the defendants each plead not guilty; thereupon came a jury of good and lawful men, to wit, _____, foreman, and eleven others, who upon their oaths do say: 'We, the jury, find defendants guilty and assess a fine of $50.00 each.' It is therefore considered, ordered, and adjudged by the court that the defendants are guilty as charged, and that the state of Alabama, for the use of Coffee county, have and recover of the defendants the said sum of $150.00 (being $50.00 each), together with the cost of this cause, for which let execution issue. The defendants not paying the fine and costs, there came G.W. Boles and T.D. Wise, who together with the defendants confess for the fine and cost, waiving their rights of exemptions as to personal property. Sentence suspended pending appeal; bond fixed at $300.00."

The first contention of appellants is that the nol. pros. as to the three other defendants, without the consent of these defendants, operated as a material amendment of the indictment. This contention is not tenable. Offenses of this kind, though perpetrated by one act, are separate offenses and punished separately. Segars v. State, 88 Ala 144, 7 So. 46. The cases of Elliott v. State, 26 Ala. 78, and McGehee v. State, 58 Ala. 360, are distinguished in the case of Segars v. State, supra. The rule is that all participants in a crime are severally liable as if each had done the whole alone (2 Bishop, Cr.Pr. § 463), and one may be convicted and the other acquitted (Segars v. State, supra; Crawford v. State, 112 Ala. 1-24, 21 So. 214; White's Case, 12 Ala.App. 162, 68 So. 521). Hence, in a case where the defendants are severally liable, a nol. pros. as to one defendant is not a discontinuance as to the others jointly indicted. The rule would be different in those cases where the crime was necessarily joint, such as conspiracy, card playing, riots, and the like, and in cases similar to Johnson's Case, 44 Ala. 414, McGehee's Case, 58 Ala. 360, and Lindsey's Case, 48 Ala. 169. The nol. pros. as to the three other defendants in no way relieved the state of any burden as to these defendants, nor did it increase the burden of their defense. Of course, if it had been necessary to have connected the other defendants with the crime, in order to convict the defendant, a different question would be presented; but it was not. White v. State, supra. But, even if in this case there was a discontinuance, the defendant without objection proceeded with the trial, and such...