Denham v. State

This prosecution originated in the county court; the defendant in that court being charged with the offense of selling one quart of whisky to one John J. Bryant, who made the affidavit upon which the prosecution was based.

From a judgment of conviction in the county court the defendant appealed to the circuit court, and was there tried by a jury on a complaint filed by the solicitor, as provided by Code 1907, § 6730. This complaint, however, in no sense confined the charge against the defendant to that originally made in the county court. To the contrary, the complaint filed by the solicitor, while containing only one count, charged the defendant with a violation of the prohibition law in practically all of its phases; and, as the original affidavit in the county court contained the sole charge that hesold whisky, each of the other allegations made by the solicitor was unauthorized and were mere statements of the solicitor, unsupported by an affidavit as to any of the several offenses charged except that of selling whisky, and said complaint was therefore not a compliance with the law. Acts 1915, p. 30. The court erred in declining to strike every charge from the complaint, except the charge of selling, as there was no affidavit or other proper procedure upon which to base the complaint. The case of Echols v. State, 16 Ala. App. 138,75 So. 814, is clearly in point here, and upon authority of that case, and cases therein cited, the judgment of the lower court must be reversed. See, also, Ex parte State,200 Ala. 700, 76 So. 998; Maxwell v. State, 16 Ala. App. 508,79 So. 269; Moore v. State, 165 Ala. 107, 51 So. 357. In view of the cases cited supra, the Attorney General, representing the state upon this appeal, concedes that, for the error in overruling defendant's motion to strike the new or added offenses from the complaint filed by the solicitor, a reversal of the judgment of conviction in the circuit court is necessitated.

Charge 1 was properly refused. In the first place, this charge assumes that witness Bryant, as a matter of fact, got the whisky in question from the defendant, which fact was in dispute; the defendant having testified that he did not sell him any whisky, or let him have any whisky. This was a question for the jury. Moreover, the charge does not assert a correct statement of the law as applied to this case, as the rule of evidence providing that a conviction cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, applies in cases of felony only, and is not applicable in cases of misdemeanors. Code 1907, § 7897. The rule is that in misdemeanor cases a conviction may be had on the evidence of an accomplice, without corroboration, provided, of course, the jury credit him. "In misdemeanors his complicity goes only to his credibility, and of that the jury must judge, as they judge of the credibility of other witnesses."

Charges 2 and 3 were properly refused, as was also charge 4; the latter being abstract and involved.

Other questions presented on this appeal need not be discussed, for upon another trial of this case the issue must be necessarily confined to the one question of fact as to whether or not the defendant sold a quart of whisky to the party named in the original affidavit, and whether said sale occurred in Marshall county, Ala., and within 12 months before the making of the affidavit.

Reversed and remanded.