Opinion
7 Div. 557.
February 26, 1929.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Henry Green was convicted of violating the Prohibition Law, and he appeals. Affirmed.
The prosecution was begun in the county court upon the following affidavit: "Before me, A. C. Hansard, a Justice of the Peace in and for said County, personally appeared G. W. Tolleson, who, being duly sworn deposes and says he has probable cause for believing, and does believe, that, in said State and County, and before making this affidavit, that the offense of having in his possession, and selling Spirituous, Vinous, or Malt liquors has been committed and accusing Henry Green thereof, against the peace and dignity of the State of Alabama."
From a judgment of conviction in the county court defendant appealed to the circuit court. The solicitor filed the following complaint: "The State of Alabama by its Solicitor complains of the defendant Henry Green for that within twelve months before the commencement of this prosecution said defendant had in his possession and sold spirituous, vinous or malt liquors, contrary to law."
Evidence for the state tended to show that defendant, on February 26, 1927, sold to state's witness Terry a quart of corn whisky for $2.50. Defendant denied the transaction, testifying that he was in Gadsden on that date and had a transaction with one Whatley, in which Whatley paid him a sum of money for lumber and defendant gave Whatley the receipt referred to in the opinion.
In argument to the jury the solicitor said: "The defendant claims to have seen one Mr. Thornton in Gadsden and brings an affidavit here called a showing." Defendant moved to exclude this remark. The trial court granted the motion and instructed the jury not to consider the statement.
S.W. Tate, of Anniston, for appellant.
Every prosecution must have the averment "against the peace and dignity of the state of Alabama." Const. 1901, § 170; Code 1923, § 4526; Fowler v. State, 155 Ala. 21, 45 So. 913; Smith v. State, 139 Ala. 115, 36 So. 727; Cagle v. State, 151 Ala. 84, 44 So. 381; Simpson v. State, 111 Ala. 6, 20 So. 572. Counsel discusses other questions, but without citing additional authorities.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
It is first contended that the cause should be revised because the information filed by the solicitor did not conclude: "Against the peace and dignity of the State of Ala." The prosecution is for a misdemeanor begun by affidavit and not by indictment. The solicitor filed a complaint on appeal complying with section 3843 of the Code. In view of Code, § 4646, it was not necessary to have filed this complaint. Having done so and following the charge laid in the affidavit, there could be no objection to it, and the fact that this statement did not conclude, "Against the peace and dignity of the State of Ala.," is not error. Thomas v. State, 107 Ala. 61, 17 So. 941; Simpson v. State, 111 Ala. 6, 20 So. 572.
The written charges requested by defendant were substantially covered by the court in its oral charge.
The defendant offered in evidence a paper called by him a receipt, and which he testified that he wrote and gave to one Whatley, at Gadsden, on February 26th, the time of the alleged sale of the liquor. While defendant was being cross-examined the solicitor asked him to write on a piece of paper the words appearing on the said receipt. This the defendant did. The solicitor did not offer this writing in evidence, and after the evidence was closed and the solicitor had arisen and addressed the jury in beginning his opening argument, the defendant asked permission of the court to reopen the evidence and to be allowed to offer this writing. This was discretionary with the trial judge, and, under the facts in this case, we are not authorized to declare that the trial judge abused his power.
The defendant insisted that the court committed reversible error in refusing to permit the jury to take with them into the jury room the written showing of one of defendant's witnesses. This was also within the sound discretion of the court. Code 1923, § 9511; Bradley v. State, 21 Ala. App. 539, 110 So. 157.
The ruling of the court relative to the remarks of the solicitor were without error. Moreover, the ruling of the court was in accord with the motion of defendant, and therefore he has no exception.
There is no error in the record, and the judgment is affirmed.
Affirmed.