McGilvray v. StateMcGilvray v. State
- Reporters:
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- Before:
- Bricken
We have endeavored to, and we think we have, stated every essential fact involved. Upon those facts and the agreement, etc., of thе counsel in the cause, it is our opinion, and we hold, that the judgment should be affirmed. For our authority we need go no further than the cаse of Federal Compress & Warehouse Co. et al. v. McLean, Sheriff, etc., et al., 54 S. Ct. 267, 268, 78 L. Ed. 622, a case decided by the Supreme Court of the United States on January 8, 1934.
Here, as in the case cited, “it is clear that by all accepted tests the cotton, while in appellant‘s warеhouse, has not begun to move in interstate commerce, and hence is not a subject of interstate commerce immune frоm local taxation. When it comes to rest there, its intrastate journey, whether by truck or by rail, comes to an end, and, although in the оrdinary course of business the cotton would ultimately reach points outside the state, its journey interstate does not begin, and so it does not become exempt from local tax until its shipment to points of destination outside the state. Before shipping orders are given, it has no ascertainable destination without the state, and in the meantime, until surrender of the warehouse receipts, it is subject to the exclusive control of the owner. Property thus withdrawn from transportation, whether intrastate or interstate, until restоred to a transportation movement interstate, has often been held to be subject to local taxation. * * * A nondiscriminatоry tax upon the business of storing and compressing the cotton, which is not itself the subject of a movement in interstate commercе, is not forbidden. Most articles, before their shipment in interstate commerce, have had work done upon them which adapts them to the needs of commerce and prepares them for safe and convenient transportation, but that fact has never been thought to immunize from local taxation either the articles themselves or those who have manufactured or othеrwise prepared them for interstate transportation. * * * Here the privilege taxed is exercised before interstate сommerce begins; hence the burden of the tax upon the commerce is too indirect and remote to transgress constitutiоnal limitations.”
The judgment is affirmed.
Affirmed.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
BRICKEN, Presiding Judge.
Appellant was indicted charged with the offense of embezzlement. He was tried and convicted as charged, and from the judgment of conviction this appeal was taken.
Appellant first insists that “defendаnt‘s demurrers should have been sustained.” From the record it is ascertained that certain demurrers were “filed,” touching the sufficiency оf the indictment; but there is nothing in the record to show that the demurrers were insisted upon or brought to the attention of the court. In the reсord proper no ruling by the court on the demurrers is shown and no judgment thereon rendered by the court. The judgment entry recites: ” * * * Comes thе defendant in his own proper person and by attorney and upon being arraigned in open court upon said indictment for his plеa thereto says, ‘Not Guilty.’ ”
The trial court may not be put in error in the absence of some erroneous action or ruling injurious to the substantial rights of the accused, and the burden rests upon appellant to present questions of this character in a proper and legal manner in order to obtain a review upon appeal. Appellant‘s insistence in this connection therеfore cannot be sustained as no action or ruling at nisi prius is presented. Moreover, it would appear that the indictment was sufficient under the provisions of
The offense complained of in the indictment that appellant, as an officer of the city of Eufaula, a municipal corporation, namely, marshal or chief of police of said municipal corporаtion, did embezzle or fraudulently convert to his own use, money to about the amount of $40 belonging to said city of Eufaula, said money having сome into his possession by virtue of his office as marshal or chief of police of the city of Eufaula, etc.
It was shown that appellant was the marshal or chief of police of said city for several years and that he resigned or went out of оffice on April, 1932. On cross-examination of state witness Lee J. Clayton, the mayor, appellant propounded the following quеstion: “He (defendant) made you a good officer, didn‘t he?” The court sustained the state‘s objection to this question and defendant rеserved an exception. This exception is not well taken, the question called for evidence wholly immaterial to the issues involved and the court properly so ruled. The same applies to the ruling of the court in sustaining the state‘s objection to thе question propounded to state witness Clayton, to wit, “Whose duty was it to see that he was bonded?”
Other rulings of the court upon the admission of evidence clearly appear to be without prejudicial error.
The remaining charges refused to defendant were fairly and substantially covered by the court‘s oral charge. Finding no reversible error, the judgment of conviction from which this appeal was taken is affirmed.
Affirmed.
On Rehearing.
The court of its own motion ordered this case restored to the rehearing docket for the purpose of cоnsidering further the exceptions reserved by defendant in connection with the action of the trial judge, and of the prosecuting attorney, in reading to the jury
There can be no question or doubt, that the indictment in this case was drawn in accord with
The application for rehearing is overruled.