This was permissible under the law, the suggestion to the contrary — if it is to the contrary — in the next to the last paragraph of the opinion by this court in the case of Hill v. State, 27 Ala. App. 160, 167 So. 606, being but mere dictum, and not here controlling. Rutherford v. State, Ala. App., 193 So. 193; Grayson v. State, 28 Ala. App. 210, 182 So. 579; Sexton v. State, 23 Ala. App. 318, 127 So. 497; Herbert v. State, 20 Ala. App. 634, 104 So. 681; Osborne v. State, 25 Ala. App. 276, 144 So. 539; Gamlin v. State, 19 Ala. App. 119, 95 So. 505. Ante, p. 129.
There was no error in this ruling, for a conviction, or acquittal, in a prosecution in the federal court under the National Prohibition Act (27 USCA), does not bar a subsequent prosecution in the state court for a violation of the state prohibition laws based upon the same transaction. This has been definitely so decided in the following cases: Gilbert v. State, 19 Ala. App. 104, 95 So. 502; Gamlin v. State, 19 Ala. App. 119, 95 So. 505; Tribble v. State, 19 Ala. App. 172, 95 So. 827; Smith v. State, 19 Ala. App. 221, 96 So. 375; Cash v. State, 19 Ala. App. 317, 97 So. 147; Peek v. State, 19 Ala. App. 370, 97 So. 374; Burns v. State, 19 Ala. App. 384, 97 So. 609; Mason v. State, 19 Ala. App. 473, 98 So. 137. The opinion in the Gilbert Case, supra, has many times been followed and approved by the appellate courts of this and other states. It is a complete answer to the insistence here made. The evidence adduced upon this trial was in conflict, and thus made a question for the determination of the jury.
The defendant interposed a plea of former jeopardy, setting up that he had been heretofore convicted of the same offense in the federal court. Demurrer to the plea was properly sustained. It has many times been held by this court that a prosecution in the federal courts for violation of the National Prohibition Act is not a bar to a prosecution for a violation of the state prohibition laws based upon the same transaction. Gilbert v. State, 19 Ala. App. 104, 95 So. 502; Gamlin v. State, 19 Ala. App. 119, 95 So. 505. There is no bill of exceptions.
The state's counsel demurred to said plea on the ground that it was not an answer to the indictment and stated no defense. The trial court properly sustained the demurrer. A conviction or acquittal in a prosecution in federal court under the National Prohibition Act does not bar a subsequent prosecution in the state courts for a violation of the state prohibition laws based upon the same transaction. Gilbert v. State, ante, p. 104, 95 So. 502; Gamlin v. State, ante, p. 119, 95 So. 505. The evidence of the state tended to show that the defendant was operating and in possession of a still from which whisky was running.
This question has been many times decided by this court. Gilbert v. State (Ala.App.) 95 So. 502; Gemlin v. State (Ala.App.) 95 So. 505; Smith v. State (Ala.App.) 96 So. 375; Tribble v. State, ante, p. 172, 95 So. 827. Ante, p. 104.
The demurrer to the plea was properly sustained. Gilbert v. State, ante, p. 104, 95 So. 502; Gamlin v. State, ante, p. 119, 95 So. 505. The evidence for the state showed that the sheriff of Marshall county, with several deputies, found at the house of defendant a considerable quantity of beer in different vessels, about five gallons of whisky, and a still in the yard a short distance from the house.