Thomas v. State, 7 Div. 883.
| Decision Date | 10 October 1946 |
| Docket Number | 7 Div. 883. |
| Citation | 27 So.2d 793,248 Ala. 415 |
| Parties | THOMAS v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 21, 1946.
Certiorari to Court of Appeals.
Motley & Motley, of Gadsden, for petitioner.
Wm. N. McQueen, Atty. Gen., and Williard W. Livingston, Asst. Atty. Gen., opposed.
The complaint upon which trial was had in the circuit court is:
'The State of Alabama, by its Solicitor, complains of Henry Thomas that within twelve months before the commencement of this prosecution, he did buy, sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship, prohibited liquors, contrary to law and against the peace and dignity of the State of Alabama.'
Petitioner makes two contentions, one of which is dependent upon the other.
The first is that it is not an offense under section 98, Title 29, Code, to buy prohibited liquor in a dry county. The Court of Appeals has so held in two cases, Griffin v. State, 22 Ala.App. 369, 115 So. 769; Sharp v. State, 22 Ala.App. 562, 118 So. 238.
But it was pointed out in Sharp v. State, 23 Ala.App. 457, 126 So. 895 (a second appeal), that in Jinright v. State, 220 Ala. 268, 125 So. 606, this Court held otherwise, observing that the provision of what is now section 98, Title 29, Code, making it unlawful to receive or have in possession such liquors, also includes the buying of them, and refused to follow Griffin v. State, supra; but without referring to Sharp v. State, and held that form 34(101), section 259, Title 15 () does charge an offense insofar as it uses the word 'buy,' though that is not in the statute, and that the indictment was not subject to demurrer on that ground.
That makes the second contention without basis on which to rest. It is as the brief for petitioner states, that the information containing an alternative charge which states no offense will not support a conviction, though there was no demurrer to it, and though it contained other alternatives which were good. Moreover, this contention has been expressly denied by a decision of this Court, and cases otherwise holding, and cited by petitioner, have been overruled. Ex parte State (State v. Collins), 200 Ala. 503, 76 So. 445.
The writ is denied.
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