Long v. State

• Decision Date: 03 February 1910
• Parties: LONG v. STATE.
• Court: Alabama Supreme Court

51 So. 636

165 Ala. 101

LONG v. STATE.

Supreme Court of Alabama

February 3, 1910

Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.

Dick Long was convicted of violating the liquor laws, and he appeals. Affirmed.

Leith &amp Gunn, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

EVANS J.

The indictment in this case was found and returned at the first term, 1908, of the circuit court of Walker county, was marked "Filed" by the clerk of the court on the 7th day of March, 1908. The defendant gave bond for his appearance "at the present term of the court" to answer said indictment which was approved March 12, 1908. On November 9 1908, the defendant filed in the said circuit court a paper writing in words as follows: "The State v. Dick Long. Comes the defendant in the above-styled cause and demands that his case now pending in the circuit court be transferred to the docket of the Walker county law and equity court. Leith & Gunn, Attorneys for Defendant." This demand of defendant was disallowed by the court, and defendant was put upon his trial in said circuit court on November 11, 1908. The defendant then filed the following plea: For further plea the defendant says this cause is now pending in the Walker county law and equity court of said county, having been transferred there by the demand of the defendant heretofore made removing it from the circuit court's docket to the said Walker county law and equity court, and therefore this court has no jurisdiction to try and determine this cause." The judgment entry recites that this plea was demurred to by the state, and the demurrer was sustained. The demurrer does not appear in the record. The defendant not having made his demand to have this case transferred within a reasonable time after having been arrested and having given bond, waived the right to have the case transferred. To hold otherwise in such cases would be to retard justice and to allow unnecessary delays in the trial of causes.

The defendant demurred to the indictment upon the ground that there was a misjoinder of actions in the different counts of the indictment; because under some counts of the indictment the defendant could not be punished with a fine of more than $100, while under other counts he could be punished by fine of $500 and sentenced to hard labor for six months. This was not a good ground of demurrer. Wooster v. State, 55 Ala. 220. In which case the rule as laid down in Norvell v. State, 50 Ala. 174, was overruled.

The defendant was tried upon counts 2, 3, and 4 for the violation of the act approved February 26, 1907, General Acts of Alabama 1907, pp. 200, 626, providing for an election in each county upon petition by a certain portion of qualified electors of the county to determine whether or not the said law should go into effect in such county. The punishment provided for a violation of this and all prohibition laws then existing is found in General Acts of Alabama 1907, p 366, approved March 12, 1907.

The only other questions for the consideration of this court were raised by objections to the evidence offered by the state, in trying to show that an election had been held in Walker county, in accordance with said law, about December 9, 1907 and that the result thereof was "against the sale of liquor." Exceptions were duly reserved to the adverse ruling of the court. We shall consider these in the order in which they come. The burden was upon the state to show that such an election had been held, and that the result was "against the sale of liquor." The...