Salter v. State

Decision Date08 June 1920
Docket Number3 Div. 373
Citation85 So. 847,17 Ala.App. 517
PartiesSALTER v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied June 22, 1920

Appeal from Circuit Court Montgomery County; Leon McCord, Judge.

C.D Salter was convicted of violating the prohibition law, and he appeals. Affirmed as to the conviction, but reversed and remanded for proper sentence.

Mark D Brainard, of Montgomery, for appellant.

J.Q Smith, Atty. Gen., for the State.

SAMFORD J.

The defendant was indicted and convicted of violating the prohibition law, and from the judgment he appeals.

It having been shown that the defendant had in his possession beer, from which whisky is usually made, besides bottles and jugs that had recently contained whisky, it was perfectly competent to prove that the defendant's father, who lived about 150 feet from defendant had a still and 20 or 25 gallons of the same kind of beer as was found in defendant's house, and that there was a "big path" leading from the defendant's to the father's house, as tending to connect the defendant with the manufacture of prohibited liquors. That the father, too was guilty, in no wise tended to excuse the defendant. The rulings of the court on the evidence were in line with the foregoing and were without error.

We find no error in the record affecting the judgment of conviction, which is affirmed, but under the statute (Acts 1919, p. 148) the sentence is error. Under Code 1907, § 7620, in all convictions for felonies, in which the imprisonment or hard labor is for more than one year and not more than two years, the judge in passing the sentence is invested with the discretion to sentence the party to imprisonment in the penitentiary or confinement in the county jail, or to hard labor for the county. This section of the Code modifies, becomes a part of, and must be read in connection with every other section of the Code to which it relates. Ex parte Thomas, 113 Ala. 1, 21 So. 369. Section 2 of an act providing for an indeterminate sentence (Acts 1919, p. 148, § 2) provides that--

"In all cases in which the punishment fixed by the statute is imprisonment in the penitentiary, and in which a maximum and a minimum term is prescribed, the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the penitentiary for a term not less than the minimum and not greater than the maximum fixed by the statute for such offense."

If therefore, section 7620 of the Code must be read into and become a part of those sections where the term of imprisonment...

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9 cases
  • Green v. State, 6 Div. 894.
    • United States
    • Alabama Court of Appeals
    • February 17, 1931
    ...Code 1923? "In this connection we call your attention to the following decisions of this Court on the question involved. Salter v. State, 17 Ala. App. 517, 85 So. 847; Abrahams v. State, 18 Ala. App. 252, 89 So. Farley v. State, 20 Ala. App. 105, 101 So. 69; Conner v. State, 20 Ala. App. 61......
  • Farley v. State
    • United States
    • Alabama Court of Appeals
    • June 24, 1924
    ... ... an indeterminate term of imprisonment in the penitentiary ... The indeterminate sentence law does not apply in cases where ... a sentence to hard labor for the county is provided and such ... sentence is imposed. Brown v. State, 18 Ala. App ... 154, 89 So. 845; Salter v. State, 17 Ala. App. 517, ... 85 So. 847; Abrahams v. State, 18 Ala. App. 252, 89 ... An ... order is here entered affirming the judgment of conviction, ... but from what has been said, the sentence imposed will be ... reversed, set aside, and annulled, and the cause remanded for ... ...
  • Abrahams v. State
    • United States
    • Alabama Court of Appeals
    • June 30, 1921
    ... ... upon conviction was sentenced to perform hard labor for the ... county of Sumter for a term of 12 months. This was an ... improper sentence, and the defendant should have been ... sentenced to the penitentiary for an indeterminate term as ... provided for by said act. Salter v. State, 17 ... Ala.App. 517, 85 So. 847 ... The ... judgment of conviction is therefore affirmed, but the cause ... is remanded for proper sentence ... Affirmed ... and remanded for proper ... ...
  • Dozier v. State
    • United States
    • Alabama Court of Appeals
    • June 22, 1920
    ...whisky, and not the possession of the beer, constituting the crime with which defendant is charged. Frazier v. State, 86 So. 173; Salter v. State, 85 So. 847. It a question for the jury to say whether under the facts the defendant was guilty, and we are not authorized under the facts presen......
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