95 So. 2d 801 | Ala. | 1957
Lead Opinion
As shown by the opinion of the Court of Appeals:
“The indictment charged defendant with transporting 'in quantities of five gallons or more, prohibited liquors or beverages, contrary to law/ etc.
“The judgment recites: ‘Came the defendant in his own proper person and by attorney and the said defendant being duly arraigned upon the said charge, for his plea thereto says guilty of violating the prohibition law. Thereupon this cause being submitted to the Court it is considered by the Court that the defendant is guilty of violating prohibition law and assesses a Fine of $200.00 and 30 days hard labor as a penalty therefor.’ ”
The Court of Appeals reversed the judgment of conviction and remanded the cause.
The State, by the Attorney General, filed petition for certiorari.
We concur in the conclusion reached by the Court of Appeals that the judgment of conviction must be reversed. The charge to which the defendant plead guilty was not included in the charge of transporting laid in the indictment. In fact, “violating the prohibition law” is not any charge at all.
“We are impelled to hold that a blanket charge of violation of the prohibition law of Alabama as it now exists does not designate any distinct or specified offense by name or as known in common parlance * * Slater v. State, 230 Ala. 320, 162 So. 130, 132; Jackson v. State, 236 Ala. 75, 182 So. 83; Hardin v. State, 241 Ala. 4, 3 So.2d 89.
We do not agree with the Court of Appeals in its opinion that the charge of transporting includes in it no lower grade of offense. The offense of an attempt is embraced in the charge of transporting laid in the indictment in the instant case.
In at least one case, on a trial under an indictment charging transporting, etc., conviction of an attempt was permitted to stand. Tharpe v. State, 23 Ala.App. 193, 122 So. 698, certiorari denied 219 Ala. 431, 122 So. 699.
Writ denied.
Rehearing
On Application for Rehearing.
Counsel for the defendant asks that we reconsider that portion of the opinion which holds that an attempt is embraced in the charge of transporting laid in the indictment in the instant case.
Section 42 of Title 14, Code 1940, provides that upon the trial of an indictment for any offense, a jury may, if the evidence warrants it, find the accused guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.
Opinion extended. Application for rehearing overruled.
