Savage v. State

• Decision Date: 21 June 1921
• Docket Number: 3 Div. 381.
• Citation: 18 Ala.App. 299,92 So. 19
• Parties: SAVAGE v. STATE.
• Court: Alabama Court of Appeals

92 So. 19

18 Ala.App. 299

SAVAGE v. STATE.

3 Div. 381.

Court of Appeals of Alabama

June 21, 1921

Rehearing Denied Nov. 15, 1921.

Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.

James alias Jim Savage, was charged with having manufactured prohibited liquors and with having such liquors in his possession, convicted generally, and he appeals. Reversed and remanded.

Hamilton Page & Caffey, of Brewton, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

There were two counts in the indictment, the first charging the manufacture of liquor and the second charged:

"The grand jury of said county further charge that before the finding of this indictment and since the 30th day of September, 1919, James alias Jim Savage did possess or have in his possession a still, apparatus, appliance, or a device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, contrary to law, against the peace and dignity of the state of Alabama."

The statute creating the crime of having in possession a still, etc., was adopted September 30, 1919 (Acts 1919, p. 1086). There being no provision that it should become effective from its passage, it became effective 60 days after its passage, to wit, November 30, 1919, Code 1907, § 7805. Until November 30, 1919, it was not a crime to have in possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages, and therefore an indictment which charged the defendant with having in his possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors, covering a period during which, at all times, such possession was not a violation of law, charges no offense and will not support a conviction. Howard v. State, 17 Ala. App. 464, 86 So. 172; McMullen v. State, 17 Ala. App. 504, 86 So. 175; Bibb v. State, 83 Ala. 84, 3 So. 711; McReynolds v. State (Ala. App.) 89 So. 825.

The verdict in this case being general will be referred to the first count, which was good, and charged the offense of manufacturing prohibited liquors and will support the judgment of conviction rendered in this case, unless for other reasons the judgment must be reversed. Handy's Case, 121 Ala. 13, 25 So. 1023; Norman's Case, 13 Ala. App. 337, 69 So. 362.

But the appellant says the judgment must be reversed because the trial court committed error in sustaining the state's demurrer to his plea of former jeopardy, in which he admits the manufacture of the prohibited liquors, but says that, in a court of competent jurisdiction, upon a valid charge, he was tried and convicted of having in his possession the identical liquor he is now charged with making, that the possession was at the time of its manufacture, that he manufactured liquor at no other time, and possessed no other liquor. It is claimed in argument that the possession of the liquor is comprehended in the charge of manufacturing and that upon a prosecution for the offense of manufacturing this liquor, defendant could have been convicted of possessing it. Upon this proposition depends a determination of this appeal.

It is the fixed policy of the law in this jurisdiction that a single crime cannot be split up or subdivided into two or more indictable offenses and, if the state, through its duly constituted officers, in a court of competent jurisdiction, elects to prosecute a crime in one of its phases or aspects it cannot afterwards prosecute the same criminal act under color of another name. Everage v. State, 14 Ala. App. 106, 71 So. 983; Moore v. State, 71 Ala. 307; Brown v. State, 105 Ala. 117, 16 So. 929; Willis v. State, 134 Ala. 450, 33 So. 226. In Buchanan v. State, 10 Ala. App. 103-105, 65 So. 205, it was held:

"The state cannot elect to prosecute and try a person for a lower grade and then put him on trial for a higher grade of the same offense." State v. Blevins, 134 Ala. 216, 32 So. 637, 92 Am. St. Rep. 22; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Turk v. State, 140 Ala. 110, 37 So. 234.

In Gunter's Case, supra, the late Justice Haralson, speaking for the court, said:

"It is the settled rule of this court that a defendant cannot be lawfully punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient of the other"

-and in 8 R. C. L. p. 145, § 130, the rule is laid down and sustained by authority, that:

"A prosecution for any part of a single crime bars any further prosecution based on the whole or any part of the same crime."

-and section 7315, Code 1907, provides that:

"The defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be felony or a misdemeanor."

The defendant might have been in possession of whisky without having manufactured it, and he might be guilty of manufacturing liquor and also guilty of being in the possession of the same whisky but, if the allegations of the plea in this case, are such that the defendant could not be guilty of the charge under this indictment, of manufacturing whisky, without being in possession of the whisky, the possession of...