McCrosky v. State

• Decision Date: 08 June 1920
• Docket Number: 8 Div. 755
• Citation: 17 Ala.App. 523,87 So. 219
• Parties: McCROSKY v. STATE.
• Court: Alabama Court of Appeals

87 So. 219

17 Ala.App. 523

McCROSKY v. STATE.

8 Div. 755

Court of Appeals of Alabama

June 8, 1920

Rehearing Denied June 22, 1920

Appeal from Morgan County Court; W.T. Lowe, Judge.

Lee McCrosky was convicted of violating the prohibition law, and he appeals. Affirmed.

Certiorari denied 87 So. 221.

Sample & Kilpatrick, of Hartsells, for appellant.

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

BRICKEN P.J.

The motion to strike the bill of exceptions, on the ground that it was not signed by the trial judge within the time required by law, is denied. It affirmatively appears that the judgment was entered on December 16, 1919, and that the bill of exceptions was presented to the trial judge on the 7th day of February thereafter, and while the date of signing is left blank, that is, the day of the month is blank, yet the bill was actually signed during the month of February, 1920. The bill having been presented on February 7, 1920, the presiding judge had until June 7, 1920, or, in other words, 90 days, in which to sign it, and as it was duly signed some time during the month of February, 1920, it is clear that there is no merit whatever in the motion made by the Attorney General in this connection.

The defendant was charged by indictment with having in his possession spirituous, vinous, or malt liquors contrary to law. The trial resulted in the conviction of the defendant and from that judgment, he appeals.

On the trial three special pleas of former jeopardy were interposed. These pleas set up the fact that this defendant had been tried in the inferior court of Hartsells on the charge of vagrancy, which under Code 1907, § 7843, subd. 4, is defined as unlawfully selling or bartering spirituous, vinous, or malt liquors. It is insisted that the court erred in sustaining the demurrers to these pleas.

We are of the opinion, however, that there is no merit in this insistence, and that the demurrers were properly sustained for the reason that the pleas show that the trial in the inferior court of Hartsells was for a different offense from the one charged in the indictment in this case, and upon which he was on trial. Huckabee v. State, 168 Ala 27, 53 So. 251.

Code 1907, § 7843, subd. 4, provides that "any person trading or bartering stolen property, or who unlawfully sells or barters any spirituous, vinous, or malt, or other intoxicating liquors," is a vagrant. The mere having in possession spirituous, vinous or malt liquors, as will be seen, does not constitute vagrancy. It is clear that in order to sustain a charge of vagrancy under this subdivision of that section, it must be shown by the evidence beyond a reasonable doubt that the accused sold or bartered liquors of the kind and character enumerated therein.

In order to successfully plead former jeopardy, it must be shown that the offense charged in the two prosecutions is the same in law and in fact, for the words "same offense" mean the same identical act and crime. From 12 Cyc. 280, we quote on the same subject as follows:

"Several rules have been laid down by the authorities for determining whether the crimes are identical. One test is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first, and, if this is the case, then the crimes are assumed to be identical."

As before stated, the fact of unlawfully having in possession prohibited liquors does not constitute the offense of vagrancy, and a conviction under that charge upon these facts would be unauthorized.

Further, the jurisdiction of the inferior court of Hartsells is the same as that of a justice of the peace only, and a justice of the peace cannot try a person for unlawfully having in his possession prohibited...