Spigener v. State

• Decision Date: 15 December 1914
• Docket Number: 149
• Citation: 11 Ala.App. 296,66 So. 896
• Parties: SPIGENER v. STATE.
• Court: Alabama Court of Appeals

66 So. 896

11 Ala.App. 296

SPIGENER v. STATE.

No. 149

Court of Appeals of Alabama

December 15, 1914

Appeal from Circuit Court, Elmore County; W.W. Pearson, Judge.

Ben Spigener was convicted of violating the prohibition law, and he appeals. Affirmed.

Frank W. Lull, of Wetumpka, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst Atty. Gen., for the State.

BROWN J.

The appellant was indicted at the fall term, 1913, of the circuit court of Elmore county for violation of the prohibition law and on the 20th of March, 1914, was tried and convicted for the offense; and from that judgment he prosecutes this appeal.

The indictment is in form prescribed by the statute (Acts Sp.Sess.1909, p. 90, § 29 1/2), charging that the defendant "sold, offered for sale, kept for sale or otherwise disposed of spirituous, vinous or malt liquors, contrary to law," and is sufficient. Jones v. State, 136 Ala. 123, 34 So. 236; Noles v. State, 24 Ala. 674; Lawson v. State, 151 Ala. 95, 44 So. 50.

This same section of the act provides:

"And on the trial under a charge in either form, any act of selling in violation of law, embraced in the charge, may be proved and the charge in each of said forms shall be held to include any device or substitute for any of said liquors."

This act, so far as it prescribes the form of indictment for violation of the prohibition law, and relates to the admission of evidence under such indictment, is not affected by subsequent legislation regulating the sale of intoxicating liquors in this state. Allen et al. v. State, 181 Ala. 383, 61 So. 912; Hauser v. State, 6 Ala.App 31, 60 So. 549; Southern Express Co. v. Brickman, 65 So. 954.

Under this indictment, any evidence tending to support any of the offenses charged alternatively in the indictment was properly admitted by the court, leaving it to the jury to determine of what offense, if any, the defendant was guilty; and the state was not bound to elect upon which of the charges it would rely for conviction. Allison v State, 1 Ala.App. 207, 55 So. 453.

Luke Kendrick, the first witness for the state, testified in substance, that he lived last year in Elmore, and knew the defendant, who also lived in Elmore, on the opposite side of the railroad from witness; that Mr. Hamilton, the section foreman under whom witness worked, sent him to the defendant's for some whisky, and gave him a dollar to pay for it; that he went to the defendant's back door, and that the defendant was in the house when witness got there; that witness knocked on the door, and defendant came out and witness told him that he wanted to get some whisky; that witness gave defendant the money, and defendant went back into the house and brought him two half-pint bottles of "Old Quaker" whisky, and witness carried it to Mr. Hamilton; that this was on a week day while the crew of section hands was at work. Over the objection of the defendant, the court allowed the state to prove by this witness that he had purchased liquor from the defendant on previous occasions, and also subsequent to this time. This evidence had a tendency to support the charge that defendant was keeping liquors for sale contrary to law. On the principles declared above, this ruling of the court was correct.

The state was allowed to prove by the witness Hamilton, ...