Leith v. State

Decision Date02 September 1924
Docket Number6 Div. 409.
Citation101 So. 336,20 Ala.App. 251
PartiesLEITH v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

J. W Leith was convicted of possessing a still, and appeals. Reversed and remanded.

Curtis Pennington & Pou, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.


Count 1 of the indictment was eliminated by the court having given the affirmative charge as to said count in favor of defendant, and followed by the verdict of the jury which found the defendant guilty under the second count. This, of course, operated as an acquittal of the charge contained in the first count-that of distilling, making, or manufacturing alcoholic, spirituous, malted, or mixed liquors or beverages a part of which was alcohol.

The second count, to which the verdict of guilty referred, charged the offense denounced by the statute approved September 30, 1919 (Acts 1919, p. 1086). The count charged that this defendant did manufacture, sell, or give away, or have in his possession, a still, apparatus, appliance, or device, or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, contrary to law.

Before pleading to the merits of the indictment, the defendant interposed a plea in abatement, known under the law as a plea of misnomer. In said plea, which was duly verified by affidavit, as the law requires, the defendant set up that "his true name is Joe Wheeler Leeth, and not J. W. Leath, alias J. W. Leith, as alleged in the indictment, and that he has never been known or called by the name of J. W. Leath, of J. W. Leith, etc.

From the minute entry we gather that the court sustained the state's demurrer to said plea. No demurrer, however, is contained in this record, and for that reason we are unable to pass upon this question, and under the well-settled rule we must indulge the presumption that the court's ruling in this respect was proper and without error. Moreover, we note that the indictment contains the averment, after designating the defendant by initials, "whose name is to the grand jury otherwise unknown." This averment relieves the indictment of the infirmity noted in this respect in the following cases: Gerrish v. State, 53 Ala. 476; Lyon v. State, 61 Ala. 229; Washington v. State, 68 Ala. 85; Winter v. State, 90 Ala. 637, 8 So. 556; Wellborn v. State, 154 Ala. 80, 45 So. 646; Jones v. State, 181 Ala. 75, 61 So. 434; Axelrod v. State, 7 Ala. App. 62, 60 So. 959; Smith v. State, 8 Ala. App. 192, 63 So. 575; Butler v. State, 17 Ala. App. 512, 85 So. 864. Code 1907, § 7142, expressly provides the indictment must be certain as to the person charged; but, when his name is unknown to the grand jury, it may be so alleged without further identification. An indictment so framed is therefore not subject to a plea of misnomer; but, as held in Butler v. State, supra, if it develops upon the trial that the averment, "whose name is otherwise unknown to the grand jury," is untrue, there can be no conviction. See, also, Winter's Case, 90 Ala. 637, 8 So. 556; Cheek's Case, 38 Ala. 227; Butler's Case, supra.

It is evident that the conviction of this defendant rested upon the evidence of the state's witnesses, which tended to show that, at a distance of about 657 yards from defendant's house, through and beyond some woods, a complete still was found, and that a path led from that still to the defendant's home. There was no evidence that this defendant had ever traveled that path to the still; in fact the only evidence on that question was the testimony of the defendant, who stated emphatically that he never had done so while the still was there, and did not know anything about a still being there. It was shown by the testimony that men and women tracks were seen in the path; but there was no effort made or offer to show that any of these tracks were made by the defendant, or that any of the tracks testified to as being in the path resembled the track of the defendant, or were in any manner similar thereto. Several witnesses shown to have been familiar with the path in question testified that the path, or trail, led from the public road at the Pink Waldrop place, and through by defendant's place, and on by near the still place to White Branch. Witness Lewis Perolio, who was shown to be thoroughly familiar with all the surroundings, and who made a map or diagram showing all the points testified to in this case,...

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3 cases
  • Camp v. State
    • United States
    • Alabama Court of Appeals
    • April 6, 1926
    ... ... conclusive of this appeal: Wilson v. State, 100 So ... 914, 20 Ala.App. 62; Hemphill v. State, 101 So. 159, ... 20 Ala.App. 154; Guin v. State, 94 So. 788, 19 ... Ala.App. 67; Watkins v. State, 101 So. 334, 20 ... Ala.App. 246; Dabbs v. State, 101 So. 220, 20 ... Ala.App. 167; Leith v. State, 101 So. 336, 20 ... Ala.App. 251; Miller v. State, 101 So. 510, 20 ... Ala.App. 279; Nugent v. State, 101 So. 925, 20 ... Ala.App. 689 ... Under ... all the evidence in this case the defendant was entitled to ... be discharged as a matter of law ... Reversed ... ...
  • Wideman v. State, 7 Div. 382
    • United States
    • Alabama Court of Appeals
    • February 19, 1957
    ...of not guilty, just as a plea of misnomer would not lie where such an allegation is made with respect to a person's name, Leith v. State, 20 Ala.App. 251, 101 So. 336. The defendant claims that there was a fatal variance between proof and allegation. The property is described in rather gene......
  • Tartt v. State
    • United States
    • Alabama Court of Appeals
    • September 2, 1924

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