Hancock v. State

71 So. 973 | Ala. Ct. App. | 1916

PELHAM, P. J.

The only questions raised by the record relate to the action of the court in overruling defendant’s demurrer to each of the eight counts of the complaint upon which defendant was tried for a violation of the prohibition law.

(1) .If there was error in overruling the demurrer as to the second, third, fourth, fifth, and sixth counts, it was error without injury, for it appears from the record that the court subsequently gave the defendant the affirmative charge as to each of these counts. There remain to be considered, therefore, only the first, seventh, and eighth counts.

(2) The first count followed the form provided by the statute for charging a violation of the prohibition law, and the demurrer to it was properly overruled. — General Acts 1915, p. 30, paragraph 29½; Glover v. State, 11 Ala. App. 289, 66 South. 877; Spigener v. State, 11 Ala. App. 296, 66 South. 896. It covered any violation of the law committed by defendant within 12 months prior to the commencement of the prosecution (Glover v. State, supra), whether such violation consisted of a selling, offering for sale, keeping for sale, giving away, or other unlawful disposition (General Acts 1915,.p. 32, par. 32), or transporting along a public street or highway for another, spirituous, vinous, or malt liquors (Hall v. State, 12 Ala. App. 210, 67 South. 714), or in acting as agent or assisting friend for another in procuring an unlawful sale of such liquors (General Acts 1915, p. 34, par. 33).

(3) The charges'embraced in said count included, therefore, the separate charges made in counts 7 and 8; hence, even if each of these latter counts were subject to the demurrer filed to them, the overruling of such demurrer will not work a reversal of the judgment of conviction, because the verdict of conviction .was a general one, not specifying the count under which it was found, and will be referred to the good count.—Norman v. State, 13 Ala. App. 337, 69 South. 362. However, we may say in passing that we do not think either of the counts 7 or 8 subject to attack on any ground stated in the demurrer.—Hall v. State, 12 Ala. App. 210, 67 South. 714; Spigener v. State, 11 Ala. App. 296, 66 South. 896, General Acts 1915, p. 44, par. 12.

Affirmed.