Smith v. State

• Decision Date: 19 November 1929
• Docket Number: 2 Div. 434.
• Citation: 23 Ala.App. 316,124 So. 668
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

124 So. 668

23 Ala.App. 316

SMITH v. STATE.

2 Div. 434.

Court of Appeals of Alabama

November 19, 1929

Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.

Robert Smith was convicted of violating the prohibition law, and he appeals. Affirmed.

Craig &amp Craig and Arthur M. Pitts, all of Selma, for appellant.

Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.

SAMFORD J.

The defendant owned one lot of whisky in pint bottles, which was in his garage in Lowndes county, and another lot of whisky in pint bottles, which was at his home in Dallas county. Each lot of whisky was entirely distinct and separate from the other. Each of the places at which the whisky was found is more than one-fourth of a mile from the county line. The defendant owned all of the whisky at the same time. The defendant was duly tried and convicted on a charge of unlawfully possessing whisky by the court in Lowndes county and on his trial in this case he pleaded that conviction as a bar to this prosecution.

The plea was in statutory form. Code 1923, § 5205 (5). Where this is the case, the plea states a good defense to the indictment, and is not subject to demurrer. Perkins v State, 21 Ala. App. 576, 110 So. 474. We are mindful of the general rule, as stated in several cases cited in 1 Mayfield, Digest, p. 499, to the effect that a former conviction is no bar to a subsequent prosecution, unless the accused could have been convicted upon the first indictment upon proof of the facts averred in the second. But this plea meets his requirement. While the affidavit alleges the crime to have been committed in Lowndes county, a conviction on that charge could have been maintained upon a proof of a possession in Dallas county within one-fourth of a mile from the line of Lowndes. The proper disposition of this plea was by a joinder of issue, and if the proof failed the plea would fail with it. We have too many times held the form of plea as set out in the Code to be sufficient to now require additional averments. Carter v. State, 21 Ala. App 406, 108 So. 642; Cast v. State, 11 Ala. App. 177, 65 So. 718; Black v. State, 123 Ala. 78, 26 So. 340; Henry v. State, 33 Ala. 389; Wooley v. State, 20 Ala. App. 364, 101 So. 918; Perkins v. State, supra.

However the undisputed evidence in this case, even as stated by appellant's counsel, discloses that the possession of whisky by defendant in Lowndes and Dallas counties were two separate and distinct transactions, having no relation to each other. Each was a violation of law, and subject to a separate prosecution. A man may be in possession of 1 or 100 vessels containing whisky. If this whisky is so placed as to constitute a single group, it is one possession, for which only one prosecution will lie. Such was the case in Whitaker v. State, 21 Ala. App. 114, 105 So. 433; Holland v. State, 21 Ala. App. 520, 109 So. 885; Id., 215 Ala. 106, ...