Pitts v. State

• Decision Date: 05 February 1924
• Docket Number: 6 Div. 364.
• Citation: 19 Ala.App. 559,99 So. 51
• Parties: PITTS v. STATE.
• Court: Alabama Court of Appeals

99 So. 51

19 Ala.App. 559

PITTS v. STATE.

6 Div. 364.

Court of Appeals of Alabama

February 5, 1924

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

R. J Pitts was convicted of violating the prohibition law, and appeals. Reversed and remanded.

Bankhead & Bankhead and Chas. R. Wiggins, all of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.

BRICKEN P.J.

The prosecution against this appellant, defendant in the court below, originated in the county court of Walker county; the charge being a violation of the prohibition law by having in his possession prohibited liquors.

Under the authority of Ex parte State ex rel. Attorney General McLosky v. State (Ala. Sup.) 98 So. 708, we must hold that sufficient data is shown by the record to confer jurisdiction upon the circuit court of Walker county although it clearly appears that there was a noncompliance on the part of the judge of the county court with the provisions of section 6726 of the Code of 1907.

In the county court upon complaint and affidavit, and in the circuit court upon complaint filed by the solicitor, this appellant was charged by his initials only; these complaints were therefore subject to a plea of misnomer, but, as no such plea was filed in either court for and on behalf of the accused, the question is not presented here, and cannot be raised in this court for the first time on appeal.

From a judgment of conviction in the circuit court this appeal was taken.

The evidence relied upon by the state for a conviction showed without dispute, that on a Sunday afternoon in July, preceding the trial of this case, the two state witnesses went to a house owned by appellant, in Walker county, and upon looking through the window of the kitchen of said house saw a fruit jar containing some substance that looked like whisky; they put a boy through the window, who got the jar and delivered it to the state witnesses, and it was discovered that the contents was whisky, whereupon a warrant was sworn out in the county court, and the prosecution started as above stated. The testimony as a whole also shows that some time prior, several days, the defendant had rented the house in question to other parties, and had delivered possession to said tenants, reserving for himself one room only, but not the room in which the whisky was found; to the contrary, as to that room (the...