Scott v. State

57 So. 413 | Ala. Ct. App. | 1912

WALKER, P. J.

The indictment in this case, which was filed in court on the 30th day of November, 1910, charged that “before the finding of this indictment Ab. Scott sold spirituous, vinous, or malt liquors without a license and contrary to law, against the peace,” etc. It is to be observed that the indictment is in the form prescribed by section 7353 of the Code for the cases of sales of such liquors without a license or in violation of special or local laws regulating or prohibiting their sale. The defendant by demurrer, raised the question of .its sufficiency as a charge of a violation of the general prohibition law which was in force at the time it was found. Under the provisions of section 29% of the act approved August 25,1909, entitled “An act to further suppress the evils of intemperance,” etc. (Acts Sp. Sess. 1909, pp. 63, 90), in an indictment, complaint-, or affidavit for. selling, offering for sale, keeping for sale, or otherwise disposing of spirituous, vinous, or malt liquors, it is sufficient to charge that the defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors contrary to law. The indictment in this case uses the language which the. statute makes sufficient to constitute a charge of a sale of such liquors in violation of the general prohibition law which was then in force, and also makes the further charge that the sale was made without a license. In other words, the indictment alleged all that the statute required to be alleged, and also averred in effect that the sale was made by a person not having a license. In legal effect this latter allegation added nothing to the charge made by the other language contained in the indictment, as the traffic in such liquors had ceased to be licensed. This being true, the words “without a license” are to be regarded as wholly superfluous. Certainly, in view of the law that was in force at the time the indictment was framed, they did not add to or detract from the charge, which was sufficiently made by the use of the other words with which they were associated. The words quoted are to be treated as surplusage — without effect upon the legal sufficiency of the charge made by the indictment.

The rulings in the cases of Kelly v. State, 171 Ala. 441, 55 South, 141, and Marks v. State, 159 Ala. 71, 88, 48 South. 864, 133 Am. St. Rep. 20, do not stand in the way of this conclusioh. So far as the question now under consideration is concerned, those rulings were merely to the effect that, as an indictment for a misdemeanor is to be understood as charging that the offense was committed within the next preceding 12 months, if the law creating the offense first became operative during that period, an indictment under it is subject to demurrer for a failure to aver that the offense was committed after the la.w became effective.—Glenn v. State, 158 Ala. 44, 48 South. 505. No such reason exists in this case for alleging that the sale of liquor charged against the defendant was made at a time subsequent to the date when the general prohibition law went into effect, as that law had been in force more than 12 months when the indictment was found. The act charged was a crime during the entire period which is to be understood as covered by the indictment. The presence in it of the words “without a license” cannot be allowed to have snch an influence as to make the charge an ineffectual one of a violation of a law which had gone out of existence more than 12 months before, when the indictment contained all that was required to constitute it a legally sufficient charge of a violation of the law which was in force when it was returned, and its superfluous allegation was not such a one as could, at that time, change its legal import. The court was not in error in overruling the demurrer to the indictment.

On the day before this case was tried a jury which had acquitted the defendant on a similar charge was discharged from further service, the presiding judge saying to them that he would not permit them to pollute the stream of justice by such verdicts; and another jury was organized in its stead. After the organization of this new jury, the court addressed it at some length; the remaining original jurors being in the court room at the time. When the present case was called for trial on the next day, the defendant, by his counsel, objected to being put on trial at that time, and moved the court to continue the case, on account of the proceedings and remarks of the court to the discharged jury and the remarks of the court to the new jury, because, as stated by the counsel, “said .remarks and proceedings were calculated to prejudice and intimidate the jury in the present case, and make them feel that they were not free to bring in a verdict according to their own convictions, and because said remarks and proceedings intimate that'the court was of opinion that the defendants in all liquor cases on the docket were guilty.” The court overruled this objection and motion, and required the defendant to go to trial before a jury selected from the jurors then in attendance, all of whom were cognizant of the matters made the basis of the objection. To this action of the court the defendant excepted. It is a well established rule in this state that the grant or refusal of a. continuance rests in the sound, discretion of the trial couid, and is not the subject of revision on appeal. It is not denied that there may be a case of such a gross and palpable abuse of this discretion as to constitute an exception to this rule, and to require a reversal in order to afford the defendant an opportunity for a fair trial.—White v. State, 86 Ala. 69, 5 South. 674; Davis v. State, 92 Ala. 20, 9 South. 616; Cunningham v. State, 117 Ala. 59, 23 South. 693.

We are not of the opinion that the record' in this present case shows that there was such an abuse of discretion. Though it. may be presumed, the record not showing to the contrary, that the discharge of the former jury was in consequence of a flagrantly unwarranted acquittal at its hands, yet we are not concerned with the question as to the propriety of that action, except in so far as the manner of it, and the remarks with which it was accompanied, in connection with the subsequent remarks of the trial judge to the new jury, might have had such an effect upon the jury which tried this case as to make it apparent, or at least probable, that the trial could not have been a fair one. In his remarks to the jury which was impaneled to take the place of the one that had been discharged, the pressiding judge made mention of the fact that the discharged jury had rendered a verdict of not guilty in a liquor case in which they had been charged by the court to find the defendant guilty if they believed the evidence beyond a reasonable doubt, and referred to reports that had been brought to. the notice of the court that the juries in that county disapproved of hard labor sentences for persons convicted of violations of the liquor laws, and that, as the presiding judge was reputed to have imposed hard labor sentences on persons convicted elsewhere of such offenses, they would not convict in such cases unless some promise or assurance was given that hard labor sentences would not be imposed. The statement was made with emphasis that the presiding judge would give no such promise or assurance. He addressed the jury at some length in reference to the respective functions and duties of the court and of the jury, and they were plainly admonished as to their duty to convict when the evidence satisfied them beyond a reasonable doubt that the defendant was guilty of the charge made against him; in the course of its remarks the court saying: “When the evidence is without conflict, and clearly shows guilt, and there is not in it room for any other, inference or conclusion than that the defendant is guilty, and when it is reasonable and fair and free from suspicious or impeaching conditions, and you believe it beyond a. reasonable doubt, it is your duty to convict.” In no. part- of the remarks was there an intimation that the jury should convict in any case unless they were convinced from the evidence beyond a reasonable doubt that the defendant was guilty; and it was expressly stated to them that, “although an affirmative charge should be given, still, if they did not believe beyond a reasonable doubt that the defendant was guilty, it would be their duty to acquit.”

In the argument of the counsel for the appellant it is urged that this address of the presiding judge was calculated to affect unfavorably the fairness of the trial entered upon the following day; but no part of it is pointed out as embodying a misstatement of the law as to the duties of jurors as triors of the facts. Nor do we discover in the remarks any improper instructions in that regard. As to the specific grounds stated in support of the objection and motion, it is enough to say that the one suggesting that “said remarks and proceedings intimate that the court was of the opinion that the defendants in all liquor cases on the docket were guilty” was without foundation in fact, as the record does not indicate that the court was guilty of making in any way such an intimation, and that the other one, suggesting that “said remarks and proceedings were calculated to prejudice and intimidate the jury in the present case, and make them feel that they were not free to bring in a verdict according to their own convictions,” cannot be sustained without deciding in effect that an emphtaic admonition to the jurors in attendance, given before the trial of a case has been entered upon, as to their duty to convict when they believe from the evidence beyond a reasonable doubt that the defendant is guilty, must be condemned as a prejudicial and intimidating influence, though the giving of such admonition was occasioned by occurrences which had made it apparent to the court that juries in that locality were disposed to acquit persons charged with the commission of a certain class of offenses, specifically referred to, on considerations other than the lack of the requisite proof of guilt. We are not of opinion that the action of the court in requiring the defendant to go to trial after such an admonition had been given to the jury, under, the circumstances stated, constituted so palpable an abuse of discretion as to suggest that the defendant was thereby deprived of the right to a, fair trial.—Landthrift v. State, 140 Ala. 114, 37 South. 287.

The evidence without conflict showed a sale of the •liquor. There was no evidence tending to pxmve that the defendant’s relation to the transaction was other than that of seller. A sale completed, which passed title to the liquor as between the parties to the contract, is within the terms of the law prohibiting such a sale, without regard to the ownership of the seller.—Taylor v. State, 121 Ala. 24, 25 South. 689. The requested charges which sought to raise a question as to whether the defendant was the seller or the “assisting friend” of the purchaser were abstract. There was no evidence tending to prove that any one other than the defendant was the seller or interested in the sale. Besides, it seems that it is entirely competent for the Legislature to provide that a charge of selling prohibited liquor may be sustained by evidence showing either that the defendant was the seller or acted “as agent or assisting friend of the seller or buyer in procuring an unlawful sale of any prohibited liquors” as it undertook to do by section 33 of the act approved August 25, 1900, above referred to. Acts Sp. Sess. 1909, p. 63; Jones v. State, 136 Ala. 118, South. 236.

Affirmed.