Fitzpatrick v. State, 53 So. 1021

Fitzpatrick v. State

53 So. 1021 | Ala. | 1910

DOWDELL, C. J.

The appeal in this case is pros-

ecuted from a judgment of conviction in the city court of Bessemer for a violation of the prohibition law. The cause was tried on affidavit and warrant taken out be*4fore the Honorable William Jackson, judge of the city court of Bessemer, resulting in a verdict of guilty by the jury, and judgment thereon by the court.

A demurrer containing several stated grounds, interposed to the “affidavit and warrant,” was overruled. Motion also to quash the affidavit was made and overruled, but, as the bill of exceptions fails to show any exception reserved to this action of the court, no question can now be raised here on. this ruling.

The affidavit substantially followed the language of the statute (Sp. Acts 1909, p. .63), and was therefore sufficient, and the grounds of demurrer • addressed in this respect were not well taken. It is permissible, where offenses may be committed by different means, to charge the same in the alternative. — Cr. Code 1907, §§ 7149-7151. So, also, where the misdemeanors are of the same character and are subject to the same punishment, two or more may be charged in the same affidavit. The grounds of demurrer addressed to the affidavits in this respect were not well taken, and hence were properly overruled. The act under which the prosecution was commenced being a general law, notice of its proposed enactment was hot required to be given under the Constitution. There are several grounds, general in their statement, to the effect that- the act in question is unconstitutional, but they fail to point out or specify in what respect the invalidity consists, no>* is it even so much as suggested in brief and argument by counsel. Where the act is not patently invalid on its face, it has been the rule of this court not to search for constitutional objections to an enactment of the Legislature on a general suggestion of unconstitutionality without more; otherwise this court would, upon every such suggestion, be put to the necessity of searching the original journals of both branches of the Legisla*5ture to inquire into the history of the act from its introduction into that body to its final passage and approval. This is a duty that rests upon the complaining party, and not upon the court. Unless an act is patently unconstitutional on its face, the presumption should be in favor of its validity. We fail to see anything in the act offensive to the provisions- of the “Bill of Bights” guaranteeing the citizen against- unreasonable search. This provision was not intended to furnish an asylum for the violators of the law, but a protection against oppression.

The act in question provides that the storing of any of the prohibited liquors in any building not used exclusively as a dwelling house shall be prima facie evidence that it was kept for an unlawful purpose. It is not conclusive evidence, but only prima facie, and we think there can be no doubt of the power of the Legislature to declare such a rule of evidence. — Bailey v. State, 161 Ala. 75, 49 South. 886; Fong Yue Ting’s Case, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905. The evidence without conflict showed that the prohibited liquors were kept and stored in an upper room of a building, in which said building there was run a pool table and a soft drink stand. Manifestly the building was not used exclusively for a dwelling.

Charge 1, requested by the defendant, was properly refused. Under this charge the jury might well have found that the defendant kept the liquors for illegal purposes as well as for his own use, and yet the charge instructs an acquittal.

Charges. 2 and 3 were each calculated to mislead the jury, and were therefore properly refused. The bedroom was in the same building with the soft drink stand and pool table, connected by a stairway on the inside and one on the outside of the building. The de*6fendant claimed that the door on the inside to the stairway connecting the bedroom with the soft drink stand had not been in nse for four months, but had been nailed up. The evidence as to this) however, was in conflict, as there was testimony that on the day of the search this door was not nailed, but merely locked. But, be this as it may, the charge was faulty for uncertainty and indefiniteness in what was meant by being “connected” with the soft drink stand.

We find no error in the record, and the judgment is affirmed.

Affirmed.

Simpson, McClellan, and Mayfield, J.J., concur.