14 So. 2d 838 | Ala. | 1943
The indictment in this case charges the defendant with having in his possession for sale whiskey contrary to law against the peace and dignity of the State of Alabama, and was returned July 31, 1941, in Houston which is a wet county.
There was a demurrer which raises the question that since Houston County is a wet county, there is no law making such an act criminal. Reliance is had on a statement in Hardin v. State,
The broad terms of that statement have been limited in two respects. For one, see Holt v. State,
The indictment here in question was returned July 31, 1941, and the Code became operative May 31, 1941. The indictment covers the period of twelve months preceding, so that it may be sustained by a transaction either before or after the effective *603 date of the Code, and on demurrer we must so treat it.
There was no provision in the A. B. C. Act for a condemnation as authorized by section 4740, Code of 1923, and the principle declared in the first Lovett case, supra, was necessary, if the proceeding was to find support. That section of the Code of 1923 is section 209, Title 29, Code of 1940, and is a part of Chapter 3 of that title. Section 92 of that chapter, as it now appears in that Code, defines its scope and provides that "the following sections of this chapter shall be applicable in all 'dry counties.' " Section 209 is in that chapter, and so is section 98, which prohibits one from having whiskey in his possession in any quantity. Without section 92, supra, the principle of the first Lovett case would without doubt extend the effect of section 98 to wet counties, as well as section 209, except as possession of whiskey in a wet county is authorized by Chapter 1, Title 29, which is in substance the A. B. C. Act.
So that by reason of section 92, supra, the inquiry reverts to the question of whether there is in the law a prohibition against having whiskey in possession for sale in a wet county, not provided for in Chapter 1, supra, or under its authority. The answer however does not necessarily call for a consideration of the effect of section 92, supra, (inserted by the Code Committee), as it is set out in a chapter entitled "Laws Applicable In Dry Counties And To Illicit Manufacture And Sale."
Section 2(b), Article 1, Chapter 1, Title 29, Code of 1940, section 3(c) of the A. B. C. Act, supra, provides that "Except as herein otherwise expressly provided, the purpose of this chapter is to prohibit transactions in liquor and alcohol, and malt or brewed beverages, which take place wholly within the state, except by and under the control of the board, as herein specifically provided, and every section and provision of this chapter shall be construed accordingly." It is therefore perfectly clear that by the terms of this Act, any sale of whiskey or its possession for sale is contrary to law except pursuant to the rules and regulations of the board and the standards set forth in the Act.
The indictment charges a possession of whiskey for sale "contrary to law." If the possession for sale be in accordance with the A. B. C. Act and the rules and regulations of the board it would not be contrary to law, and a conviction could not be had under the indictment. The validity of the indictment may be referred to any law which prohibits the possession of whiskey in Houston County for sale, provided some such law existed throughout the twelve month period preceding its return into court. That law may be found in what became section 2(b), Title 29, Code of 1940, and the legislative act prior thereto.
This Court denied certiorari to review an opinion of the Court of Appeals which approved an indictment in the same terms in the case of McPherson v. State,
The demurrer to the indictment was properly overruled, insofar as this question is concerned.
We see no occasion to discuss other questions presented by the petition.
Certiorari denied.
GARDNER, C. J., and THOMAS, BROWN, LIVINGSTON, and LAWSON, JJ., concur.