Opinion
6 Div. 974.
November 1, 1955.
Appeal from the Circuit Court, Tuscaloosa County, W.C. Warren, J.
Walter C. Woods, Tuscaloosa, for appellant.
The offense of manufacturing prohibited liquors without authority of the Alcoholic Beverage Control Board, is a misdemeanor. Code 1940, Tit. 29, §§ 78, 68, 5. A person convicted of a misdemeanor cannot be sentenced to the penitentiary. Code 1940, Tit. 15, § 327; Turner v. State, 29 Ala. App. 142, 193 So. 325. Where the State does not prove the allegations of the indictment, no conviction can be had. Defendant's motion to exclude the State's evidence should have been sustained. May v. State, 22 Ala. App. 278, 114 So. 788. There was no proof of distilling without authority of the Board. May v. State, supra. The evidence was insufficient to sustain a conviction under the charge of distilling.
John Patterson, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Alfred W. Goldthwaite, Montgomery, of counsel, for the State.
The Court takes judicial notice of the rules and regulations of the Alcoholic Beverage Control Board, and knows that the Board could not grant permission to distill moonshine liquor. Code 1940, Tit. 29, §§ 1-78; State v. Friedkin, 244 Ala. 494, 14 So.2d 363; Lovett v. State, 30 Ala. App. 334, 6 So.2d 437; Id., 242 Ala. 356, 6 So.2d 441; Wells v. State, 31 Ala. App. 383, 17 So.2d 876; Id., 245 Ala. 510, 17 So.2d 878. Distilling is a felony punishable by imprisonment in the penitentiary. Code 1940, Tit. 29, § 103. This applies in wet counties. Code, Tit. 29, § 92; Boyd v. State, 239 Ala. 578, 195 So. 767; Hardin v. State, 241 Ala. 151, 3 So.2d 93. The evidence being in conflict a jury question was presented. Williams v. State, 26 Ala. App. 529, 163 So. 668; Id., 231 Ala. 93, 163 So. 670; Hill v. State, 30 Ala. App. 332, 5 So.2d 651.
The defendant was indicted under two counts, the first charging the offense of distilling prohibited liquors and the second the illegal possession of a still. He was found guilty under count one, which, omitting the formal parts, alleges that defendant: "Did distill, make or manufacture alcoholic, spirituous, vinous, malted or mixed liquors or beverages, a part of which was alcohol, without authority of the Alabama Alcoholic Beverage Control Board, and contrary to law."
The court sentenced the defendant to the penitentiary for a term of two years.
In the recent case of Shirley v. State, Ala.App., 76 So.2d 787, we decided adversely to appellant's contention that because of the allegation in the indictment that the prohibited liquors were manufactured " 'without authority of the [Alabama] Alcoholic [Beverage] Control Board' ", that the offense must be deemed a misdemeanor and the sentence to the penitentiary was error.
Ante, p. 104.
Appellant's counsel insists in brief that there was no proof of the said allegation in the indictment "without the authority of the Alabama Alcoholic Beverage Control Board."
The question of any supposed variance between the averment and proof was not called to the attention of the trial court in any manner, nor was any charge asked and refused respecting it. Vines v. State, 37 Ala. App. 22, 69 So.2d 475, certiorari denied 260 Ala. 701, 69 So.2d 477.
When the State had concluded its examination in chief the defendant moved to exclude the State's evidence. The court overruled the motion and defendant duly excepted.
No grounds of motion were assigned, therefore, the court's ruling was without error. Perry v. State, 17 Ala. App. 80, 81 So. 858; Garner v. State, 34 Ala. App. 551, 41 So.2d 634.
No request having been made for the affirmative charge and no motion for a new trial having been filed, the question of the sufficiency of the evidence to sustain the conviction is not before us.
There is no error in the record and the judgment is affirmed.
Affirmed.