Opinion
1 Div. 868.
December 17, 1929. Rehearing Denied January 7, 1930.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Carl Weaver was convicted of violating, the prohibition laws, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Weaver v. State, 220 Ala. 452, 125 So. 801.
The second count of the indictment, on which the trial was had, is as follows:
"The grand jury of said county do further charge that, before the finding of this indictment, Carl Weaver, whose name is to the grand jury otherwise unknown, did, since the 1st day of January, 1929, in Mobile county, Alabama, transport whisky in quantities of more than five gallons, contrary to law and against the peace and dignity of the state of Alabama."
Demurrer to this count was overruled. The grounds of the demurrer are, in substance: (4) That it is not alleged that the transportation of the whisky therein mentioned was intrastate; (5) it is not alleged that the transportation of said whisky was for unlawful use or disposition in the state of Alabama; (7) that the allegation "transported whisky in quantities of five or more gallons" is not an allegation to the effect that five gallons of whisky was transported at one and the same time; (8) from aught appearing defendant did not transport five gallons at one and the same time; (9, 10) that the act (Acts 1927, p. 704) upon which the prosecution is based is violative of section 45 of the Constitution; and (13) that the indictment is vague and uncertain, in that it does not state from what place and to where the alleged liquor was transported.
W. C. Taylor, of Mobile, for appellant.
The indictment was insufficient to sustain a judgment, and the demurrer was erroneously overruled. (4, 5, 7) Acts 1927, p. 704; Holt v. State, 16 Ala. App. 399, 78 So. 315; Caton v. State, 20 Ala. App. 509, 103 So. 312; (8, 13) Noles v. State, 24 Ala. 672; Nixon v. State, 55 Ala. 121; Henry v. State, 33 Ala. 389. (9, 10) Barnhill v. Teague, 96 Ala. 207, 11 So. 444; Bates v. State, 118 Ala. 102, 24 So. 448; Stewart v. Court, etc., 82 Ala. 209, 2 So. 270.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The second count of the indictment sufficiently charges the offense condemned by the statute. Acts 1927, p. 704, approved September 6, 1927. We hardly see how the charge could be more definite or specific.
The act above referred to is not in violation of section 45 of the Constitution of 1901. Such act does not revive, amend, or extend an existing act by its title merely. The statute creates a new and distinct crime.
The other questions raised are either free from error or were of such character as not to injuriously affect the substantial rights of the defendant.
The defendant has had a fair trial. Let the judgment be affirmed.
Affirmed.