Ogden v. State

Aug 1, 1916
Reporters:
, ,
Before:
Pelham
PELHAM, P. J.

(1) The court committed no error in overruling the demurrer to the several counts of the affidavit upon which defendant was tried and convicted for a violation of the prohibition law. — Ben Hancock v. State, 14 Ala. App. 91, 71 South. 973.

(2) It appears from the judgment entry that the court overruled a motion of defendant to quash this affidavit; but, as the record nowhere shows what were the grounds of the motion no question is presented for review in this particular. Besides, it appears from the judgment entry that after the overruling of the motion to quash, the complaint was amended by a separate paper filed, which is not‘set out in the record, and which, for aught we know, remedied the defects, if any, of the original affidavit, thereby curing the error of the court, if any, in overruling the motion to quash.

(3) The defendant objected and excepted, so the judgment entry shows, to the action of the court in allowing the amendment mentioned; but, as the amendment is nowhere set out in the record, this action of the court likewise cannot be reviewed, since we are not informed as to what the amendment was.

Section 32 of the prohibition law, commonly known as the ■“Fuller Bill” (Acts 1909, p. 63), under the provisions of which the defendant was tried, provides that prosecutions under the provisions of that act may be begun, and continue to a conclusion, no matter in what court or before what judge, upon the affidavit upon which it was originally begun.

(4, 5) The rulings of the court in admitting the declarations •of the defendant against interest are without error. Other rulings on the evidence are manifestly correct, and do not require discussion. Under the “Fuller Bill” the mere possession of prohibited liquors at a place other than the home or dwelling creates a presumption that they are kept for an unlawful purpose.— Hauser v. State, 6 Ala. App. 31, 60 South. 549.

*12 (6, 7) It is stated in the bill of exceptions that the “bundles” of whisky left by the defendant at the house of Alice Hambrick and seized by the deputy sheriff were exhibited to the jury and introduced in evidence. It thus appears that there was evidence before the trial court as to the quantity and nature of the packages of whisky that is not before us on review. There is nothing in the bill of exceptions showing the quantity or nature of the packages of whisky; and, in the absence of this evidence, which the trial court had before it in making its rulings, we are not in a position to affirm that the trial court was in error in refusing the general charge requested by the defendant. — Hun nicutt Lbr. Co. v. M. & O. R. R. Co., 2 Ala. App. 436, 443, 57 South. 73; Sloss-Sheffield S. & I. Co. v. Redd, 6 Ala. App. 404, 60 South. 468. In this state of the record, the presumption must be indulged in favor of the rulings of the trial court that the bundles of whisky contained sufficient quantity to afford the inference that the liquors were kept for an unlawful purpose.— Foshee v. State, 9 Ala. App. 76, 78, 63 South. 753.

We find no error in the record.

Affirmed.