Opinion
8 Div. 622.
June 21, 1932. Rehearing Denied June 30, 1932.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Erwin Noltey was convicted of violating the prohibition law, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Noltey v. State, 225 Ala. 584, 144 So. 457.
The indictment is as follows:
"The Grand Jury of said County charge that, before the finding of this Indictment that Ervin Noltey did sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship prohibited liquors, contrary to law.
"The Grand Jury of said County further charge that, before the finding of this indictment that Ervin Noltey did sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship prohibited liquors or beverages, to-wit: Jamaica ginger, contrary to law.
"The Grand Jury of said County further charge that, before the finding of this indictment that Ervin Noltey did give away or sell the essence, extract or tincture of Jamica ginger for beverage purposes, contrary to law, against the peace and dignity of the State of Alabama."
To which the defendant demurred as follows:
"Now here comes the defendant herein and for answer to the indictment exhibited against him demurs thereto, as well as to each and every count thereof severally and separately, and assigns grounds as follows, to-wit:
"1. No offense is charged therein or thereby.
"2. The indictment charges no violation of any criminal provision of the common law, and no violation of any criminal statute of the State of Alabama.
"3. The indictment seeks to charge in the alternative two or more different offenses in the same count, which may not be done.
"4. The count attempts to charge in the alternative two or more different offenses, at least one of which is not a violation of the common law or any statute of the State of Alabama, and, therefore, the defendant cannot be compelled to plead thereto.
"5. The count defines Jamaica Ginger as a prohibited liquor, whereas Jamaica Ginger is not a prohibited liquor under the law, and the indictment does not contain sufficient allegations to show that it is in fact a prohibited liquor or beverage.
"6. The count charges the defendant with the illegal possession of Jamaica Ginger [which] is not a violation of the law.
"7. The count charges that the defendant did illegally receive Jamiaca Ginger, whereas there is no provision of the law making it illegal to so receive said commodity.
"8. The count charges that the defendant did illegally carry or ship Jamiaca Ginger, whereas it is not a violation of the criminal law to carry or ship the said commodity.
"9. The indictment charges the defendant with selling Jamiaca Ginger without alleging or showing that the defendant was not a druggist, who had the right to sell said drug, and without alleging or showing that the same was not sold under a physician's prescription, as provided by law.
"10. The allegation that the giving away or sale of Jamiaca Ginger was contrary to law is a conclusion merely, and is not supported by any sufficient averment of facts so as to show a violation of the law.
"11. Jamiaca Ginger is not made a prohibited liquor by the statute, and the indictment does not show by sufficient averments that in this instance it was such in fact."
The plea of misnomer alleges that defendant's true name is Irwin Nolte, and that he has never been known or called by the name of Ervin Noltey.
The judgment entry recites the filing by defendant of a plea of misnomer, the joining issue thereon by the solicitor, and "the same being submitted to the court, after hearing the evidence offered, it is ordered by the court that the said plea be overruled." After adjudication on the demurrer to the indictment, it recites:
"The defendant being duly arraigned upon said indictment, for his plea thereto says he is not guilty. The solicitor joining issue on said plea, and the cause being submitted to the court, after hearing the evidence, it is the opinion of the court that the defendant is guilty and his fine is fixed at $500.00." For failure to pay, fine and costs, "it is ordered by the court that the defendant be sentenced, to hard labor for Franklin County," for a stated number of days and "it is further ordered by the court that the defendant be, and he is hereby sentenced to hard labor for Franklin County to a term of six months as an additional punishment for his offense."
J. Foy Guin, of Russellville, for appellant.
The judgment entry is not sufficient to support a conviction. There is no sufficient adjudication of guilt, nor valid sentence, except possibly the sentence to additional hard labor. Presley v. State, 22 Ala. App. 167, 113 So. 485; Wells v. State, 19 Ala. App. 403, 97 So. 681; Shepard v. State, 20 Ala. App. 627, 104 So. 674; McMahan v. State, 21 Ala. App. 522, 109 So. 553; Oliver v. State, ante, p. 34, 140 So. 180. The ruling on the plea of misnomer constituted reversible error. Painter v. State, 24 Ala. App. 426, 136 So. 277; Clements v. State, 19 Ala. App. 640, 99 So. 832; Munkers v. State, 87 Ala. 94, 6 So. 357. The possession of Jamaica ginger does not violate the statute (section 4621) directed against the possession of intoxicating liquors. The definitions of section 4615 of the Code are not broad enough to include Jamaica ginger. Grant v. State, 22 Ala. App. 475, 117 So. 1; Billington v. State, 140 Miss. 179, 105 So. 457; Young v. State, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717. The possession of Jamaica ginger, nor receiving or transporting it, is made an offense. Code 1923, § 4731.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence for the state tended to prove that defendant had in his possession, sold, etc., Jamaica ginger, as a beverage, and that Jamaica ginger is an alcoholic fluid, which may be used as a beverage. On the authority of Brandon v. State, 24 Ala. App. 289, 134 So. 890, we hold that the question of defendant's guilt vel non was one of fact to be determined by the court.
Counts 1 and 2 charged a violation of section 4615, Code 1923, and count 3 charged a violation of section 4731, and both offenses may be charged in the same indictment in separate counts, Code 1923, § 4645.
Each count of the indictment was sufficient to charge an offense, and demurrer was properly overruled.
The plea of misnomer and the evidence adduced presented a question of fact to be determined by the court, and this court will not review his finding.
The judgment in this case, while informal, meets the requirements in misdemeanor cases, as is decided in the decisions of this court and the Supreme Court. Talbert v. State, 140 Ala. 96, 37 So. 78; Ex parte State ex rel. etc., 202 Ala. 694, 81 So. 656; Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E, 296.
The judgment is affirmed.
Affirmed.