Loudermilk v. State

• Decision Date: 01 February 1912
• Citation: 4 Ala.App. 167,58 So. 180
• Parties: LOUDERMILK v. STATE.
• Court: Alabama Court of Appeals

58 So. 180

4 Ala.App. 167

LOUDERMILK v. STATE.

Court of Appeals of Alabama

February 1, 1912

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

J. W Loudermilk was convicted of violating the prohibition laws and he appeals. Partly affirmed and partly reversed and remanded.

The following is the substance of the different counts of the indictment:

Count 1: "Sold spirituous, vinous, or malt liquors without license and contrary to law." Count 2: "Did manufacture, sell, offer for sale, keep or have in possession for sale, barter, exchange, give away, or furnish at a public place spirituous, vinous, or malt liquors without license and contrary to law." Count 3: "Sold, offered for sale kept for sale, or otherwise disposed of spirituous, vinous or malt liquors contrary to law." Counts 4 and 5: Same as third, each count alleging that J. W. Loudermilk, whose Christian name is to the grand jury otherwise unknown, did the things charged.

Tate & Walker, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The appellant, being the defendant below, was convicted for violating the prohibition laws. The defendant was a married man, who lived with his family at a different location from the place where he was found by the officers who made a search, and found him in charge of a room shown to have in it a bed and an ice box containing a quantity of ice and between 85 and 90 bottles of beer. In an unoccupied adjoining room there were some 50 empty beer bottles. The appellant testified that he was occupying the room as a private bedroom during the absence of his wife on a visit.

The state examined one Will Pruett, who was present at the time the officers searched the premises, and this witness testified that he was making a social call on the defendant at the time the officers found him there and had helped himself to a bottle of beer from the defendant's ice box, and drank it without having been invited to do so. The state subsequently examined a Mrs. Harry Rosen, who testified to having made two purchases of beer in bottles from the defendant at a different time from the occasion when the search was made. The defendant contends that the testimony offered in behalf of the state by the witness Pruett was an election by the state to prosecute for an alleged sale or disposition to Pruett on the time and occasion testified to by him.

The indictment contained five counts (the reporter will set out the substance of the different counts of the indictment), and the state was not required to elect to prosecute for any one certain offense under any particular count of the indictment, but might prosecute for as many offenses as were charged by the different counts of the indictment, and it was proper for the court to charge the jury in its oral charge that they could find the defendant guilty under more than one count of the indictment if the evidence justified such finding. Several offenses or charges for violating the prohibition laws may be set out in separate counts of the same indictment, and the accused may be convicted upon each one as upon separate indictments. Acts 1909, p. 91, § 30; Untreinor v. State, 146 Ala. 133, 41 So. 170.

The defendant offered to prove on cross-examination by two of the state's witnesses that "a man could drink a dozen and a half or two dozen bottles of beer in a day," and that it was not unusual for a beer drinker to consume two dozen bottles of beer in a day, and excepted to the action of the court in refusing to allow such proof to be made against the objection of the state's counsel. The court committed no error in refusing to allow this proof to be made. It is a matter of common knowledge that different persons have different capacities for consumption of such beverages, and the...