Bush v. State , 12 Ala. App. 260 ( 1915 )

BROWN, J.

The original affidavit on which the prosecution was commenced was in the form prescribed by the statute (Gen. Acts, Sp. Sess. 1909, p. 90, § 29V2), charging in the alternative that the defendant “did sell, keep for sale, offer for sale, or otherwise dispose of spirituous, vinous, or malt liquors, contrary to law,” etc. This charge was broad enough to cover the offense denounced- by section 24 of the act, making it unlawful for one person to ship, transport, or deliver for another “prohibited liquors” as defined in this statute, when received at one point in this state to be shipped, transported, or deliered to another point in this state. The terms “otherwise disposed of,” when used in the connection set forth in the affidavit, the act provides “shall include and be deemed to include barter, exchange, giving away, furnishing, or any manner of disposition ~by which said liquors and beverages may pass unlawfully from one person to another — Gen. Acts Sp. Sess. 1909, p. 91, § 31.

The legal effect of the amendment was merely to add another count, making the charge more specific by averring, in the language of the statute, that the defendant “transported or delivered for another prohibited liquors or beverages, received at one point in this state to be shipped or transported to or delivered to another person,” etc. The court in allowing this amendment impinged no right of the defendant.—Campbell v. State, 150 Ala. 70, 43 South. 743; Brannon v. State, infra, 67 South. 634.

The term “prohibited liquors or beverages” is defined by the Legislature as including “all liquors, liquids and beverages prohibited by the law of the state to be manufactured, sold or otherwise disposed of, or any device or substitute for any of them, and shall also be so understood in any warrant, process, affidavit, complaint,” etc. —Acts supra, § 31. The legal import of the averments made in the second count of the complaint is that the defendant transported or delivered for another liquors or beverages in violation of the statute, and imposed upon thé state the burden of proving the charge as laid. The demurrer to the second count of the complaint was not well taken, and was properly overruled.—Brannon v. State, supra; Traylor v. State, 100 Ala. 142, 14 South. 634; Jordan v. State, 5 Ala. App. 229, 59 South. 710.

While the recitals in the judgment entry indicate that the defendant interposd his pla of not guilty before the amendment of the complaint by adding the second count was allowed, it affirmatively appears that the plea was interposed, and that the defendant had full benefit of the plea as to both counts of the complaint. The plea of not guilty as interposed applied to both counts of the complaint, and it was not necessary for the defendant to plead again before the trial was entered upon.—Howard v. State, 165 Ala. 18, 50 South. 954. Under rule 45 of the Supreme Court practice (61 South, ix), it appearing on examination of the entire case that defendant had full benefit of bis plea, no groufid for reversal is shown—Harwell v. State, infra, 68 South. 500.

Tbe original complaint charged several offenses in tbe alternative (Allison v. State, 1 Ala. App. 207, 55 South. 453), embracing, as we have shown, tbe offense charged in tbe affidavit added by amendment, and tbe defendant was tried on tbe complaint as amended. Tbe corpus de-licti of tbe offenses charged in tbe first count was tbe unlawful'keeping of liquors for sale.—Allison v. State, supra. Tbe evidence offered by tbe state, independent of tbe confession of tbe defendant, showed that tbe defendant was arrested in November, 1913, at Hopkinsville, in Shelby county, and when arrested be bad in bis possession a grip or suit case filled with pint bottles containing whisky, there being in tbe suit case .14 or 15 of such bottles, and at tbe time of tbe arrest and before tbe suit case was opened be stated to tbe officers that there was only one quart of whisky in tbe case. This evidence was sufficient to justify tbe submission of tbe case to tbe jury (Roe v. City of Tuscaloosa, infra, 67 South. 845; Foshee v. State, 9 Ala. App. 76, 63 South. 753), and was sufficient to justify tbe admission of tbe defendant’s confession, as shown by one of tbe state’s witnesses, that tbe liquor did not belong to tbe defendant.—Allison v. State, supra; Pappenburg v. State, 10 Ala. App. 224, 65 South. 418.

Tbe question of defendant’s guilt or innocence, under all tbe evidence, was one for tbe jury, and tbe affirmative charge was properly refused.—Roe v. City of Tuscaloosa, supra.

Tbe instructions to tbe jury in tbe court’s oral charge, to tbe effect that in weighing tbe defendant’s testimony they could consider tbe fact that tbe defendant was interested, was not improper, and affords defendant no ground of complaint.

Charge D is manifestly bad. The law only requires that the defendant’s guilt be shown beyond all reasonable doubt.

The court did not err in overruling the defendant’s motion non obstante veredicto.—Brannon v. State, supra.

There is no error in the record, and the judgment is affirmed.

Affirmed.