Opinion
Decided August 1, 1916.
APPEAL from Walker Circuit Court.
Heard before Hon. J.J. CURTIS.
PEEBLES PHILLIPS, for appellant. W.L. MARTIN, Attorney General, and HARWELL G. DAVIS, Assistant Attorney General, for the State.
E.M. Gibson was convicted of violating the prohibition law, and he appeals. Affirmed.
Charge 3 is as follows: The mere having of a liquor license in one's possession or custody where no liquors are found is not a prima facie case.
(1, 2) The defendant was indicted by a grand jury of the circuit court of Walker county for a violation of the prohibition laws in that county, and was tried and found guilty. Three special pleas were filed by the defendant, to which demurrers were sustained. One of these special pleas alleged that before the beginning of this prosecution against him he was arrested on a charge for "the same offense" in Jefferson county, and that said case is still undisposed of and pending in the criminal court of Jefferson county. The second plea alleged that the defendant had been acquitted of "the same offense" in a mayor's court of Jefferson county, and the third plea set up that there was a case pending against the defendant for "the same offense" in the Birmingham court of common pleas. The demurrers interposed by the state to each of these pleas were properly sustained by the court. It is not a good plea in abatement to an indictment upon which a defendant is being tried that there is another charge pending against the defendant for the same offense. — Bell v. State, 115 Ala. 25, 37, 22 So. 526. The charge in the indictment upon which the defendant was on trial charged a violation of law in Walker county; each of the three pleas in abatement set up a proceeding against the defendant for the commission of a similar offense in Jefferson county. A plea in abatement setting up a former acquittal or conviction should show positively the former case pleaded to be identically the same transaction as that with which the defendant is presently charged, and failing in this, is not sufficient, and is subject to demurrer on that ground. — Stadt v. State, 13 Ala. App. 275, 69 So. 254; Huckabee v. State, 168 Ala. 27, 53 So. 251. The pleas on their face showed that the transaction sought to be pleaded in abatement as a bar to the prosecution was a violation of the prohibition laws that took place in Jefferson county, while this indictment, to which the pleas were interposed, charges a violation of the prohibition laws occurring in Walker county — necessarily a different transaction. See Huckabee v. State, supra.
(3) There was no error in permitting the witness Gray to testify to the defendant having exhibited a United States internal revenue license issued to him when the place was being searched. — Acts 1909, p. 81, § 22 1/2.
We find no error in the record.
Affirmed.