Shirley v. State, 6 Div. 896
| Decision Date | 28 December 1954 |
| Docket Number | 6 Div. 896 |
| Citation | 76 So.2d 787,38 Ala.App. 104 |
| Parties | Leonard SHIRLEY v. STATE. |
| Court | Alabama Court of Appeals |
Walter G. Woods, Tuscaloosa, for appellant.
Si Garrett, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.
This appellant was found guilty under an indictment, which, omitting the formal parts, charged that the appellant did:
'Unlawfully manufacture, sell, give away, or have in his possession, a still or apparatus or appliance or some device or substitute therefor, to be used for the purpose of manufacturing or distilling prohibited liquors or beverages without authority of the Alcoholic Control Board of the State of Alabama, and contrary to law, against the peace and dignity of the State of Alabama.'
The jury returned a verdict finding the defendant guilty 'as charged in the indictment.'
Pursuant to such verdict the court entered a judgment finding the appellant 'guilty of unlawfully manufacturing, selling, giving away, or having in his possession a still' etc.
The court sentenced the appellant to imprisonment in the penitentiary for one year and six months.
The appeal is here on the record proper, there being no transcription of the evidence included in the record.
As we interpret the brief of appellant's counsel it is his contention that because of the statement in the indictment that appellant's actions in connection with the still were 'without authority of the Alcoholic Control Board' that the conviction of this appellant must be deemed to have been under the provisions of Section 68 of Title 29, Code of Alabama 1940, and since this section sets forth no specific penalties, it must, under the provisions of Section 78 of Title 29, be deemed a misdemeanor only. Therefore, counsel contends, the sentence imposed was excessive and illegal.
The contentions are without any merit.
Section 68, supra, which appellant's counsel uses as a premise for his argument, concerns itself chiefly with elections to determine the wet or dry status of counties. The concluding paragraph of this section however reads as follows:
'In all counties of the state it shall be unlawful for any person, firm or corporation to have in his or its possession any still or apparatus to be used for the manufacture of any alcoholic beverage of any kind, or any alcoholic beverage of any kind illegally manufactured, or transported, within the state, or imported into the state from any other place without authority of the alcoholic control board of the state, and any person, firm or corporation violating this provision or who transports any illegally manufactured alcoholic beverages, or who manufactures illegally any alcoholic beverages, upon conviction, shall be punished as provided by law.' (Italics ours.)
It is noted that the very section relied on by the...
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Sullivan v. State, 6 Div. 974
...and contrary to law.' The court sentenced the defendant to the penitentiary for a term of two years. In the recent case of Shirley v. State, Ala.App., 76 So.2d 787, we decided adversely to appellant's contention that because of the allegation in the indictment that the prohibited liquors we......
- Phillips v. State, 6 Div. 892
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Smothers v. State, 6 Div. 237
...to suppress the State's evidence based on this ground, the motion having been made at the conclusion of the State's case. In Shirley v. State, Ala.App., 76 So.2d 787, we held that where the indictment substantially followed the statute, and code form, the additional averment 'without author......