Lyles v. State

• Decision Date: 15 February 1921
• Docket Number: 7 Div. 659
• Parties: LYLES v. STATE.
• Court: Alabama Court of Appeals

88 So. 375

18 Ala.App. 62

LYLES v. STATE.

7 Div. 659

Court of Appeals of Alabama

February 15, 1921

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Frank Lyles was convicted of violating the prohibition law, and appeals. Reversed and remanded.

W.J Boykin, of Gadsden, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

Since the passage and approval, on January 25, 1919 of the act known as the "Weekly Bone Dry Law" (Acts 1919, p 6), it has been unlawful for any person to have in his possession, or to possess in this state, any spirituous vinous, or malt liquors or any other prohibited liquors or beverages, in any quantity whatsoever. This act contains some exceptions relative to wine or cordial made from grapes or other fruit when grown by the person making the same for his own domestic use, upon his own premises, but these exceptions are of no moment in the case at bar, as they are in no manner applicable to this proceeding.

In this case the court practically charged the law as above stated, and in addition thereto stated:

"If he [defendant] had this whisky in his possession, and you are satisfied beyond a reasonable doubt from the evidence that he did have it in his possession, he is guilty as charged in this indictment, and it would be your duty to find him so."

In this there was error, for the reason that neither count in the indictment contained the charge or allegation to which this statement of the law is applicable. The defendant under the terms of the indictment was not called upon to answer the charge of simply having in his possession the whisky in question, for each of the two counts of the indictment contains the qualifying phrase that such alleged possession was for the purpose of sale or other unlawful disposition. While it is true that under the evidence in this case it was for the jury to say whether or not the defendant had the whisky for sale, or other unlawful disposition, in the absence of the specific charge that he unlawfully had possession of the whisky, a verdict of guilty for such mere possession, in the absence of such an averment in the indictment, would be unauthorized.

Under the issues raised by the indictment and the defendant's plea of not guilty in this case the inquiry extended only to the question as to whether at the time and place as contended had the defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, contrary to law. These several alternative averments are contained in the indictment, and cannot be enlarged upon or extended to include other specific offenses not so averred. It therefore follows that the portion of the oral charge excepted to, while stating a correct proposition of law under an indictment containing such an averment, was error in this case the proposition of law so announces not being applicable to any issue involved.

Over the objection and exception of the defendant while being cross-examined by the solicitor he was required to testify that he had formerly been convicted in the county court and sentenced to the road for violating the Prohibition Law.

If this testimony was adduced for the purpose of affecting the credibility of the defendant as a witness, it was error. Abrams v. State, 84 So. 862, and cases cited. It was error for the reason that under the provisions of sections 4008 and 4009, Code 1907, a witness, even though he be the defendant, may be examined touching his conviction for any crime which involves moral turpitude only, the purpose of such testimony being to affect his credibility as a witness, but such fact of a prior conviction for a similar offense, even though such offense involved moral turpitude should have no place in the deliberations of the jury, and must not be considered by them as affecting the question of the guilt or innocence of the defendant on the trial then pending. The offense of violating the Prohibition Law, as charged in this indictment, as well as the offense of which this defendant was formerly convicted, as shown by the record, does not involve moral turpitude, and the evidence was therefore improperly admitted if offered for the purpose of affecting the...