Opinion
4 Div. 607.
April 22, 1930.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
A. F. Bowman was convicted of violating the prohibition law, and he appeals.
Affirmed.
The indictment is as follows:
"The grand jury of said county charge that before the finding of this indictment that Ambrose F. Bowman, alias A. F. Bowman, whose name otherwise is to the Grand Jury unknown, did sell, have in possession or possess illegally, give, barter, exchange, receive, deliver, carry or ship prohibited liquors contrary to law.
"2. The grand jury of said county further charge that before the finding of this indictment that Ambrose F. Bowman, alias A. F. Bowman, whose name otherwise is to the Grand Jury unknown, did sell, have in possession or possess illegally, give, barter, exchange, receive, deliver, carry or ship prohibited liquors or beverages contrary to law.
"Against the peace and dignity of the State of Alabama."
The objections raised by the demurrer are that a felony and a misdemeanor are charged in the same indictment and that the indictment should allege the time of the commission of the offense in view of the passage of the statute (Acts 1927, p. 704) making transportation of liquors in quantities of five gallons or more a felony.
J. C. Yarbrough, of Enterprise, for appellant.
A misdemeanor and a felony cannot be joined in the same indictment. Adams v. State, 55 Ala. 143; Tennison v. State, 18 Ala. App. 159, 89 So. 826; Griffin v. State, 22 Ala. App. 369, 115 So. 769. The indictment was bad for failing to allege the time of the commission of the act; a statute having been passed making the act which was a misdemeanor a felony. Bibb v. State, 83 Ala. 84, 3 So. 711. The affirmative charge for the state should not have been given. The plea of former conviction was sustained. 16 C. J. 265; Brown v. Tuscaloosa, 196 Ala. 475, 71 So. 672; Pierson v. State, 159 Ala. 6, 48 So. 813; Hall v. State, 134 Ala. 90, 32 So. 750; Monroe v. State, 111 Ala. 15, 20 So. 634; State v. Johnson, 12 Ala. 840, 46 Am. Dec. 283; Johns v. State, 13 Ala. App. 283, 69 So. 259; Smith v. State, 79 Ala. 257.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The indictment in this case follows the form laid down in the Code 1923, § 4556, form 101, and is not subject to any ground of demurrer interposed. Forms laid down in the Code and followed in drawing indictments are sufficient to charge the offense to which they apply. Jinright v. State, 220 Ala. 268, 125 So. 606.
Only one witness appeared before the grand jury who testified to two separate sales of prohibited liquors, one at night and the second the morning after. Two indictments were returned against this defendant based upon this testimony, each charging as one of the alternative averments that defendant did sell prohibited liquor. To one indictment the defendant interposed a plea of guilty, and on the trial of the other he interposed a plea of former conviction. On this issue the facts developed were that there had been two sales and at the request of the state in writing the jury was instructed to find this issue in favor of the state. It may be conceded that there was only one possession of the prohibited liquor by the defendant and that the sales were made from the stock then on hand, but there were two distinct sales, each of which was a violation of law. The court did not err in instructing the jury to find the issue for the state. The fact that defendant was also guilty of possessing whisky would not excuse the sales. The case of Smith v. State, 79 Ala. 257 is easily differentiated from the case at bar.
We find no error in the record, and the judgment is affirmed.
Affirmed.