Parker v. State

• Decision Date: 26 October 1937
• Docket Number: 8 Div. 588
• Citation: 27 Ala.App. 598,177 So. 168
• Parties: PARKER v. STATE.
• Court: Alabama Court of Appeals

177 So. 168

27 Ala.App. 598

PARKER v. STATE.

8 Div. 588

Court of Appeals of Alabama

October 26, 1937

Rehearing Stricken Nov. 16, 1937

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

C.L Parker was convicted of unlawfully possessing prohibited liquor, and he appeals.

Affirmed.

Thos C. Pettus, of Moulton, for appellant.

A.A Carmichael, Atty. Gen., for the State.

SAMFORD Judge.

The indictment was in three counts: No. 1 charging the unlawful possession of alcoholic liquors; No. 2 charging the unlawful possession of beer; and No. 3 charging that the defendant did maintain an unlawful drinking place. On the trial counts 2 and 3 were eliminated by written instructions of the court. This obviates the necessity for passing upon any questions involved in this appeal dealing solely with counts 2 and 3.

The defendant challenges the indictment by motion to quash and, upon the motion being overruled, by plea in abatement. As to the motion to quash and the rulings of the court thereon, it is sufficient to say that such motion will not lie, by reason of section 8630 of the Code of 1923, which provides: "No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment."

As to the plea in abatement which was overruled by the court, it appears that the grand jury was drawn by the Presiding Judge in open court, as required by law. The statement of the Presiding Judge appearing in the bill of exceptions discloses a substantial compliance with the statute, and as is provided by section 8630 of the Code of 1923: "No objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same; and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court."

It being admitted that the judge of the circuit court drew the grand jury, and no fraud being alleged, the plea was properly overruled. Code 1923, § 8630; Bolton v. State, 25 Ala.App. 539, 150 So. 362; Bell v. Terry, 213 Ala. 160, 104 So. 336.

On the trial of the case, it is made to appear by the bill of exceptions that the defendant, either as a partner or as sole proprietor, was maintaining a filling station coupled with a general merchandise establishment at which, among other things, beer, with an alcoholic content of some 4 per cent., was sold and dispensed by the defendant, or under his direction, and at a time prior to the indictment in this case and within twelve months the officers of the county, to wit: The sheriff and his deputies went to defendant's place, and there found in his possession beer in pint bottles of which they took and carried away four. Two of these bottles were carried to the office of the state toxicologist at Auburn and analyzed, and found to contain an alcoholic content of four point six by volume, and three point ten by weight.

There was a long examination, much of it unnecessary, relative to the scientific examination by the toxicologist in the analysis of the beer. However, the evidence is without conflict, tending to prove that the two bottles of beer analyzed by the toxicologist were taken by the deputy sheriff from the possession of the defendant, and that there were other bottles in the possession of the defendant at the time the two bottles were taken corresponding in size, looks, and contents to the two bottles...