Opinion
Petition for certiorari dismissed 212 Ala. 693, 101 So. 920.
May 20, 1924. Rehearing Denied June 24, 1924.
Appeal from Morgan County Court; W.T. Lowe, Judge.
C.R. Clemmons was convicted of having in possession liquors, and appeals. Affirmed.
Charge 7, refused to defendant, is as follows:
"7. I charge you, gentlemen of the jury, that possession of a copper receptable is not sufficient to convict the defendant of the charge of having in his possession prohibited liquors, although you may go further and find that such copper receptacle smelled like whisky."
Wert Hutson, of Decatur, for appellant.
The act providing for the county court was not constitutionally passed, and the entire proceedings in this case was void. Roper v. Day, 210 Ala. 440, 98 So. 286.
Harwell G. Davis, Atty. Gen., for the State.
No brief reached the Reporter.
It is first insisted that the act creating the county court of Morgan county (Local Acts 1919, p. 194) is void in that it is in violation of section 106 of the Constitution of 1901; it being contended that section 34 of said act, conditionally providing for a branch court to be held at Hartselle, was not in the notice given under section 106 of the Constitution. Section 34 of said act is not involved in this case. The trial was had at the courthouse of Morgan county, and, if section 34 of the act should be in violation of the Constitution, section 31 of the act makes provision that that fact shall not affect the validity of the remainder. Omitting section 34 from the act, such act remains a complete enactment.
Charge 7 is invasive of the province of the jury. Moreover, this charge gave undue prominence to one phase of the evidence.
The two charges numbered by us for convenience 22 and 23 are covered by given charge 17.
It is not necessary for us to pass upon the question as to whether the possession of a teaspoonful of whisky is a violation of the law. The testimony here is that there was more. We find no error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing.
Conceding the contention that that part of the act of 1919 (Local Acts 1919, p. 194 et seq.) creating a branch court at Hartselle is void and of no effect in that it violates sections 106 and 45 of the Constitution, the question is not involved in this decision. Eliminating sections 35, 36, 37, 38, and 39 and that part of section 40 applicable to the branch court, the enactment remains a complete statute in accordance with the advertisement, and section 31 of the act evidences the intention of the Legislature that it should so remain. The defendant was tried under and by virtue of the statute which in any event would remain.
The application is overruled.