McPherson v. State, 4 Div. 541.

• Decision Date: 27 February 1940
• Docket Number: 4 Div. 541.
• Citation: 196 So. 739,29 Ala.App. 278
• Parties: MCPHERSON v. STATE.
• Court: Alabama Court of Appeals

196 So. 739

29 Ala.App. 278

MCPHERSON v. STATE.

4 Div. 541.

Court of Appeals of Alabama

February 27, 1940

Rehearing Denied March 26, 1940.

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Henry McPherson was convicted of violating the prohibition law, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in McPherson v. State, 4 Div. 150, 196 So. 741.

W. L Lee and Alto V. Lee, III, both of Dothan, for appellant.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen for the State.

BRICKEN, Presiding Judge.

We are not prepared to accord to the several insistences relative to the alleged infirmities of the indictment raised by the demurrer thereto. We think the single specific charge, or accusation, contained in the indictment is sufficient to apprise the defendant as to the exact charge he was called upon to defend, and that such offense is stated in a manner as to enable the accused to know what was intended. Moreover the indictment, as framed, for the sole charge therein contained, is in substantial conformity with the provisions of the Statute, Code 1923, § 4644. Campbell v. State, Ala.Sup., 191 So. 812.

In this case, as in all criminal prosecutions, the burden rested upon the State to adduce evidence, under the required rule, to sustain the material averments in the indictment, and such evidence should be confined to the specific charge against the accused and to none other. Here, the sole charge in the indictment was to the effect that the defendant, "did have in his possession for sale whiskey," contrary to law.

On the trial of the case, and over the objections, exceptions, and motions to exclude, the court permitted the State to introduce in evidence, against the defendant, a pint of gin, and a quart of wine, each bearing the stamp of the Alabama Alcoholic Beverage Control Board. The several rulings of the court in this connection were error, if for no other reason, because of the fact the only act complained of in the indictment was the alleged unlawful possession of whiskey. The court should have sustained the several objections; for it is judicially, and otherwise generally known, that gin and wine, are not whiskey, and the introduction in evidence of the gin and wine was irrelevant and inadmissible, and could shed no light upon any issue involved in this case. The exceptions to the rulings of the court in this connection must be sustained, it being apparent that the substantial rights of the accused were injuriously affected.

The inquiry of more serious import, however, is, is the evidence in this case sufficient to sustain the judgment of conviction? This evidence discloses in substance that the defendant was in possession of one quart bottle of whiskey and another bottle with a small quantity of whiskey in it. The evidence is without dispute that the whiskey which defendant had in his car was not contraband in any manner, for it bore the proper State stamp on each of the bottles, and the occurrence took place in the City of Dothan, in Houston County, Alabama, and this court judicially...