Williams v. State, 62 So. 294

Williams v. State

62 So. 294 | Ala. Ct. App. | 1913

Lead Opinion

THOMAS, J.

When in one count several distinct offenses in the alternative are charged, each disjunctive averment must allege an offense, or the information or indictment is bad in toto. — State v. Nix, 165 Ala. 128, 51 South. 754.

Section 24 of the Fuller Bill (Acts of Special Session 1909, pp. 86, 87) provides: “It shall be unlawful for any person, firm, corporation or association, whether a *126common carrier or not, to accept from another for shipment, transportation, or delivery for another said prohibited liquors or beverages or any of them, when received at one point, place or locality in this state to be shipped, transported to or delivered to another person, firm or corporation at another point, place, or locality in this state, or to convey or transport over or along any public street or highway any of such prohibited liquors for another; and any person violating any of the provisions of this act shall be guilty of a misdemeanor,” etc.

The defendant was charged in the alternative with each of the offenses declared and condemned in the above quoted section of the act cited. He moved to strike from the complaint or information that alternative therein averring as follows: “Or did convey or transport over and along a public street or highway in the town of Wetumpka, Ala., for another, sand prohibited liquors ” This motion being overruled, he thereupon filed a demurrer to the whole complaint or information upon the ground that that one of its disjunctive aver-ments which we have last above set out charged no offense against the laws of the state of Alabama, because as alleged, that portion of section 24 of “the Fuller Bill,” hereinbefore quoted and cited, which attempted to make the act alleged in said alternative an offense, is unconstitutional and void. This demurrer was likewise overruled.

Upon the conclusion of the evidence, the court charged the jury orally, among other things, as follows: “If you believe from the evidence, beyond a reasonable doubt, that the defendant did transport over or along a public street in the town of Wetumpka whisky or beer, and that he did it for another, knowing it was whisky or beer, he would be guilty.” To this portion of said oral *127charge the defendant duly excepted. The defendant was convicted, and upon appeal here urges upon us the unconstitutionality of that part of section 24 of “the Fuller Bill” which makes it an offense for any person, whether a common carrier or not, to convey or transport for another any prohibited liquors over or along any public street or highway. Appellant’s counsel, in support of his argument as to the un constitutionality of the provision, cites us to the cases of Eidge v. City of Bessemer, 164 Ala. 599, 51 South. 246, 26 L. R. A. (N. S.) 394; West Virginia v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Mugler v. Kansas, 123 N. S. 661, 8 Sup. Ct. 273, 31 L. Ed. 205. And he insists that the provision criticised is violative of section 35 of the Constitution of Alabama and the fourteenth amendment to the Constitution of the United States.

As provided by law, we certified and submitted this proposition to our Supreme Court, who have decided in favor of its constitutionality. See Williams v. State, (Sup.) 60 South. 903. We therefore hold that the trial court committed no error either in overruling appellant’s motion and demurrer or in refusing the general charge requested by defendant or in giving that portion of its oral charge which was excepted to.

We have carefully examined all other exceptions disclosed by the record and are of opinion that there is no merit in either of them. The lower court cannot be put in error for overruling motions to exclude certain testimony of a witness, when it is not shown that the question calling for such testimony was objected to.

The judgment of the lower court is affirmed.

Affirmed.

Rehearing

*128ON APPLICATION POE REHEARING.

The original opinion of this court being based, as there shown, on the decision of our Supreme Court, rendered in response to a certification by us, we, when application for rehearing was filed, certified the matter again to that court,' who, with the whole record again before them, on May 8, 1913, overruled the application. In conformity with that ruling, a judgment will be here entered overruling the application.

Application for rehearing overruled.