Opinion
1 Div. 841.
June 25, 1929. Rehearing Denied October 8, 1929.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Jim Dixon was convicted of transporting five gallons or more of prohibited liquors, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Dixon v. State, 220 Ala. 220, 124 So. 507.
The indictment is as follows:
"1. The Grand Jury of said County charge, that, before the finding of this indictment Jim Dixon, whose name is to the Grand Jury otherwise unknown, did, since 1st day of March, 1928, transport more than five gallons of whiskey against the peace and dignity of the State of Alabama.
"2. The Grand Jury of said County do further charge, that, before the finding of this indictment, Jim Dixon, whose name is to the Grand Jury otherwise unknown, did, since the 1st day of March, 1928, in Mobile County, Alabama, transport whiskey in quantity of more than five gallons, contrary to law and against the peace and dignity of the State of Alabama."
Defendant demurred to the indictment upon the following grounds:
"(1) It is not alleged that the whiskey, mentioned in said indictment, contained any alcohol.
"(2) It is not alleged that the whiskey, therein mentioned, was spirituous, vinous, malted, fermented or other intoxicating liquors.
"(3) It is not alleged that the whiskey was being transported from any other State, territory or district of the United States, or place non-contiguous to, but subject to the jurisdiction of the United States, or from any foreign country.
"(4) It is not alleged that the transportation of the whiskey therein mentioned, was intrastate.
"(5) For aught that appears from said indictment, the defendant was transporting whiskey from a State or place outside of the State of Alabama, and into another State, outside of the State of Alabama.
"(6) It is not alleged that the transportation of said whiskey was for unlawful use or disposition in the State of Alabama.
"(7) It is not alleged that the whiskey, therein mentioned, was intoxicating.
"(8) Said indictment is based on an Act of the Legislature, entitled, 'An Act to prohibit the transportation of any of the liquors or beverages, the sale or possession, or transportation of which is now prohibited by law in Alabama, in quantities of five gallons or more, and to fix a penalty therefor,' which Act was approved September 6, 1927, and may be found in the General Acts of the Legislature of 1927, on pages 704-705, and said Act of the Legislature is invalid and unconstitutional, in that it is violative of so much of Section 45 of the Constitution of Alabama, 1901, which provides that 'No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be reenacted and published at length.'
"(9) The Act of the Legislature, mentioned in the next preceding demurrer, is unconstitutional and void, in that it does not set out or describe the liquors or beverages, the sale, possession or transportation of which is now prohibited by the laws of Alabama, and is therefore violative of Section 45 of the Constitution of Alabama, 1901, which provides, in part, that 'No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.'
"(10) Said indictment charges no offense."
Jere Austill, of Mobile, for appellant.
The Act of September 6, 1927, is invalid and unconstitutional, in that it does not set out or describe the liquors or beverages the sale, possession or transportation of which is prohibited by law. Const. 1901, § 45; Barnhill v. Teague, 96 Ala. 207, 11 So. 444; Bates v. State, 118 Ala. 102, 24 So. 448; Stewart v. Court of County Com'rs, 82 Ala. 209, 2 So. 270; Ferguson v. Court of County Com'rs, 187 Ala. 648, 65 So. 1028. The indictment is defective; it is not charged that the transportation of five gallons was at one and the same time. Holt v. State, 16 Ala. App. 399, 78 So. 315. If it was not sufficient to charge appellant with a felony, it was not sufficient to charge him with a misdemeanor. Bibb v. State, 83 Ala. 84, 3 So. 711; Code 1923, § 4687. The jury alone must fix the punishment for violation of the statute. Code 1923, §§ 5285, 4704.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Appellant was indicted, tried, and convicted, for a violation of what is commonly known and called the "five gallon law." The statute in question makes it unlawful for any person, firm or corporation, or association within this state to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession, or transportation of which was prohibited by law in Alabama, at the time of the passage and approval of said statute. The offense is made a felony by the terms of said act, and a punishment for its violation is fixed at not less than one year, nor more than five years, imprisonment in the penitentiary. Acts 1927, p. 704.
In the instant case there is no conflict in the evidence from which it affirmatively appears that at the time and place of the arrest of appellant he was then and there transporting in an automobile ten gallons of whisky. The defendant offered no evidence, hence these facts were before the court and jury without dispute.
Numerous grounds of demurrer were interposed to the indictment; several of these to the effect that the whisky, mentioned in the indictment, is not alleged to have contained alcohol; that it was not alleged that the whisky, therein mentioned, was spirituous, vinous, malted, fermented, or other intoxicating liquor, etc.
These insistences are wholly without merit, and need no discussion. That whisky is a spirituous liquor is within the common knowledge of all men. The courts will take judicial knowledge of what everybody is presumed to know, and juries are permitted to find such fact without specific proof being adduced in its support. The court properly held that these and other objections to the indictment were not well taken. The indictment follows the wording of the act upon which it was predicated and was sufficient.
Upon the trial below the act itself was attacked, and many reasons presented as to its unconstitutionality. The same questions are presented upon appeal. We have examined the points of decision insisted upon in this connection, but find no merit in any of them. The court below so held and did not commit error. The record appears regular upon its face. There being no error upon this trial, the judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.