Boatner v. State

63 So. 33 | Ala. Ct. App. | 1913

WALKER, P. J.

— The indictment in this case contained three counts, which, respectively, charged the defendant with carrying a pistol concealed about his person, with carrying a pistol about his person on premises not his own or under his control, and with public drunkenness. By demurrer to the indictment, by motion to require the prosecution to elect, and by exceptions to the action of the court in giving and refusing instructions to the jury, the defendant raised the questions of the rigid of 1ho state to join in one indictment the separate offenses, alleged, and, on the trial under such indictment, to secure the conviction of the defendant of separate and distinct offenses. On a verdict finding the defendant guilty of carrying a pistol concealed about his person, as charged in the first count of the indictment, and assessing a' fine of $50 for that offense, and finding him guilty of public drunkenness, as charged in the third count of the indictment, and assessing a fine of $5 for that offense, the court adjudged the defendant guilty of the two offenses, and assessed against him a fine of $55.

It is settled in this state that in one indictment charges, in separate counts, of different misdemeanors, though not belonging to the same family of crimes, may be joined. — Burt v. State, 159 Ala. 134, 48 South. 851; Crittenden v. State, 134 Ala. 145, 32 South. 273; Swanson v. State, 120 Ala. 376, 25 South. 213; Wooster v. State, 55 Ala. 217. It follows that there was no error in overruling the demurrer to the indictment.

When this case was first considered by the court, the opinion was entertained that the judgment appealed from was to he regarded as a conviction of the defendant of more than one offense for the commission of a single act, and that, under the rule applied in the case of Burt v. State, 159 Ala. 134, 48 South. 851, it was not sustainable. Upon a reconsideration of the evidence set out in the hill of exceptions, the conclusion has been reached that the verdict, in so far as it found the defendant guilty of carrying a pistol concealed about his person, may he referred to the evidence, which had a tendency to prove that he did so just prior to his being guilty of the conduct which rendered him subject to the charge made in the third count of the indictment, upon which he was also found guilty. This being true, the record cannot be regarded as disclosing the fact that the convictions of the separate offenses charged m the first and .third counts of the indictment were based upon a single act,, which constituted a violation of more than one penal statute. There having been evidence of separate and distinct acts or conduct constituting the offenses of which the defendant was found guilty, the verdict rendered furnished a sufficient support for the judgment appealed from. — Guarreno v. State, 157 Ala. 17, 48 South. 65; Scrutchings v. State, 151 Ala. 1, 43 South, 962; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17.

No error is found in the record.

Affirmed.