92 So. 245 | Ala. Ct. App. | 1922
The defendant was convicted under an indictment which charged that he "Subsequent to the 25th day of January, 1919, did distill, make, or manufacture, in said state and county, alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcoholic, contrary to law." The plea in abatement, as appears in the record to have been filed, questioning the validity of the grand jury that found and returned the indictment, appears to have been abandoned, as there is no reference thereto in the judgment, nor anything in the judgement to indicate that it was acted upon by the court. Virgil Thomas v State, ante, p. 314,
The same proposition appears to have been raised in the defendant's motion for a new trial. Having the opportunity to raise this question on the main trial, and it appearing not to have been then presented, the defendant cannot ask that it be reviewed, when first presented in his motion for a new trial. Greer v. Malone Beall Co.,
There was only one witness introduced in the trial of the case, and that was the sheriff of the county. We have given the most careful consideration to his evidence, and are of the opinion that there is nothing therein to indicate whether the prohibited liquors found on defendant's premises were manufactured prior or subsequent to the 25th day of January, 1919. In fact, there is just as much evidence to warrant the conclusion that the manufacture was before as subsequent to said date. It was necessary that the indictment should allege, as it does, that *353 the prohibited liquors should have been made or manufactured since the 25th day of January, 1919, and it was equally necessary, in order to sustain a conviction, that the proof should correspond to such allegation.
A consideration of some of the recent cases of like character as this one, which have been before this court, discloses in each instance that, where the judgment of the lower court has been upheld, there has been some testimony, either direct or by way of legitimate inference, from which the jury could say that the prohibited liquors were manufactured since the 25th day of January, 1919. For instance, in the case of World White v. State (Ala.App.)
In the case of Sweat v. State (Ala.App.)
The defendant made specific objections to the testimony tending to show that he manufactured liquor, on the grounds that the corpus delicti had not been proven, and that there was no testimony showing that the whisky was made subsequent to January 25, 1919. In the light of the decisions of this court referred to, and our conception of the law, we are constrained to hold that in overruling these objections, the trial court was in error. Mills v. State (Ala.App.)
Under all the evidence in this case, we are of the opinion that the defendant was entitled to the general affirmative charge requested by him.
The judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.