Johnson v. State

These defendants were indicted, tried, and convicted for violating the prohibition law. The indictment contained four counts. Demurrers were sustained to count 2, and overruled to counts 3 and 4. No demurrer was interposed as to count 1 of the indictment. There is no bill of exceptions; the appeal being upon the record proper:

The demurrers to counts 3 and 4 of the indictment were properly overruled, under the authority of Black v. State,205 Ala. 277, 87 So. 527.

The sixth ground of demurrer is not well taken, and the plea in abatement, which raises the same question, is also without merit; this express question having been so decided by this court in Powell v. State, ante, p. 101, 90 So. 138.

Affirmed.

On Rehearing. Under the statute (Acts 1915, p. 31 § 31), the term "prohibited liquors and beverages * * * shall include all liquors, liquids, and beverages now or hereafter 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, indictment, judgment, decree or pleading in any judicial proceeding." Therefore the first, second, and fourth grounds of demurrer to the indictment were properly overruled. The fifth ground of demurrer is not well taken. Powell v. State (Ala.App.) 90 So. 138.¹ The third ground of demurrer is general in its nature, and does not raise the question upon which counsel for appellant base their argument on rehearing.

Application overruled.

¹ Ante, p. 101.