Wells v. State

The indictment was in three counts. The first count charged that defendant manufactured prohibited liquor, etc., and the second and third that he possessed a still. The conviction was under the second and third counts, which operated as an acquittal under the first count. It will therefore not be necessary to notice any of the rulings of the court relating solely to the charge under the first count.

The contention is made that there was a misjoinder of counts, in that counts 2 and 3 charged a felony under acts of the Legislature 1919, p. 1086, and that count 1 charges a misdemeanor under Acts 1915, pp. 2, 3, §§ 3, 4; it being insisted that section 15 of the Acts 1919, p. 6, is void as being in violation of section 45 of the Constitution of 1901. This court has already passed upon this question adversely to appellant's contention. Shoemake v. State, 17 Ala. App. 461,86 So. 151.

Under the third count of the indictment, as it appeared in the original record, the word "prohibited" had been omitted, which would have rendered the count defective and subject to demurrer, but the return to the certiorari corrects this omission, and therefore the discussion of this contention in appellants's brief will be omitted.

It is contended by appellant that the expression "prohibited liquors or beverages" as used in the indictment, makes the indictment fatally defective, in that it does not state an offense in both alternative averments. This point has been decided adversely to appellant's contention. The word "prohibited" qualifies both "liquors" and "beverages" as used in the indictment. Ex parte State ex rel. Attorney General,207 Ala. 585, 93 So. 382.

There is no merit in the further contention of defendant that the indictment is fatally defective in using the words, "apparatus, appliance, or any device or substitute therefor," in addition to charging the possession of a "still." We have many times held this form of indictment to be sufficient. Barnes v. State, 18 Ala. App. 344, 92 So. 15; Reese v. State, 18 Ala. App. 357, 92 So. 77.

There was conflict in the evidence, and therefore charges B, C, and D were properly refused. Charge G is predicated on the first count, of which charge defendant was acquitted. Charge T singles out a part of the evidence, and for that reason is bad.

The motion for a new trial, not being incorporated in the bill of exceptions cannot be reviewed. Stover v. State,204 Ala. 311, 85 So. 393.

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

Affirmed.