Summary
In Wells v. State, 31 Ala. App. 383, 17 So.2d 876, cert. denied, 245 Ala. 510, 17 So.2d 878 (1944), the Court of Appeals held that the affidavit charging the defendant with a violation of the Alabama Beverage Control Act was not void, although it conceded the affidavit to be "imperfect, confused and ineptly executed."
Summary of this case from City of Dothan v. HollowayOpinion
8 Div. 335.
March 21, 1944. Rehearing Denied April 11, 1944.
Appeal from Circuit Court, Colbert County; John C. Morrow, Special Judge.
John Wesley Wells was convicted of violating the Alcoholic Beverage Control Act, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Wells v. State, 245 Ala. 510, 17 So.2d 878.
The original affidavit and warrant are as follows:
"The State of Alabama, } Colbert County }
Before me, Jno. B. Sockwell, Judge of the County Court in and for said County, personally appeared J.L. Carroll, who being duly sworn on oath, says that he has cause for believing, and does believe, that within twelve months next before commencing this prosecution John Wesley Wells did sell, offer for sale or have in his possession for sale alcoholic beverages contrary to law against the peace and dignity of the State of Alabama.
J.L. Carroll
Sworn to and subscribed before me this 6 day of July, 1942.
R.F. Ridley Justice of the Peace.
The State of Alabama Colbert County To Any Lawful Officer of the State of Alabama:
You are commanded to arrest John Wesley Wells and carry him before Jno. B. Sockwell, Judge of the County Court of said County, instanter, to answer the State of Alabama for the charge of: Violating ABC Act preferred by J.L. Carroll.
Witness my hand this 6 day of July, 1942.
R.F. Ridley Justice of the Peace."
The complaint of the Solicitor in the Circuit Court is as follows:
"The State of Alabama } Colbert County } In the Circuit Court.
The State of Alabama, by its Solicitor, complains of John Wesley Wells that within twelve months before the commencement of the prosecution he was guilty of the offense of violating Amended Regulation No. 56 promulgated by the Alcoholic Beverage Control Board on to-wit: February 28, 1941, which rule reads as follows: 'it shall be unlawful for any person, firm, corporation, partnership, of association of persons as such terms are defined in the Alabama Beverage Control Act, who has not been licensed so to do under the provisions of the Alabama Beverage Control Act, to sell, offer for sale or have in possession for sale, any liquor as that term is defined in the Alabama Beverage Control Act.'
In that the said John Wesley Wells did sell, offer for sale, or have in possession for sale alcoholic, spirituous, vinous, fermented, or other alcoholic beverages, contrary to law, against the peace and dignity of the State of Alabama.
Jas. E. Smith, Jr. Solicitor for Eleventh Judicial Circuit of Alabama."
W.A. Barnett, of Florence, for appellant.
An affidavit which is not on oath and which fails to allege that affiant has probable cause for believing and does believe, is void and does not state an offense. The affidavit states that affiant appeared before John B. Sockwell, Judge of the County Court, but the jurat is signed by R.F. Ridley, Justice of the Peace. It alleges that affiant has cause for believing, etc. Johnson v. State, 82 Ala. 29, 2 So. 466; Butler v. State, 130 Ala. 127, 30 So. 338; City of Selma v. Shivers, 150 Ala. 502, 43 So. 565; Endsley v. State, 26 Ala. App. 605, 164 So. 396; City of Bessemer v. Eidge, 162 Ala. 201, 50 So. 270. Courts take notice ex mero motu of void affidavits. Ethridge v. State, 26 Ala. App. 600, 164 So. 397. The affidavit states no offense in a wet county. Thomas v. State, 166 Ala. 40, 52 So. 34; Dunklin v. State, 134 Ala. 195, 32 So. 666. Complaint in the circuit court is not sufficient to give court jurisdiction where original affidavit was void. Slater v. State, 230 Ala. 320, 162 So. 130.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
The courts take judicial notice of the rules and regulations of the Alcoholic Beverage Control Board. Lovett v. State, 30 Ala. App. 334, 6 So.2d 437; Code 1940, Tit. 29, § 6. Any sale of whiskey or its possession for sale is contrary to law except pursuant to rules and regulations of the Alcoholic Beverage Control Board and the standards set forth in the Act. Lovett v. State, 244 Ala. 601, 14 So.2d 838. No objective to affidavit was made in the county court, and it was permissible for the Solicitor to cure any defect in the original affidavit by filing a statement in the circuit court. Gilbreath v. State, 23 Ala. App. 33, 120 So. 304; Bush v. State, 27 Ala. App. 30, 167 So. 335; Id., 232 Ala. 127, 167 So. 335.
The officers testified that they detected appellant in the act of selling whiskey to a person on the streets of Sheffield, Alabama, which we know to be, at the time this prosecution arose, located in a "wet county" under the provisions of the Alabama Beverage Control Act. General and Local Acts of Alabama, Extra Session 1936-37, page 40. They arrested him then and there; and on the following day one of them made an affidavit Under the terms of Code 1940 Tit. 13, Sec. 327, upon which a warrant for appellant's arrest was issued — though he was then "under bond."
Appellant was duly put on trial on the affidavit mentioned — charging him with "selling, offering for sale, or having in his possession for sale" alcoholic beverages — before the judge of the County Court of Colbert County.
He was there convicted, and took an appeal to the Circuit Court.
In the Circuit Court he was again convicted, and now brings this appeal.
After careful study we have concluded that the affidavit we have mentioned, which the reporter will set out in the report of this case, while imperfect, confused, and ineptly executed, was not void, and was subject to amendment under the terms of Code 1940 Tit. 13, Sec. 347.
In the County Court, however, no objection was made to the sufficiency of the affidavit; and appellant went to trial on same without protest. In the Circuit Court a complaint was filed — though unnecessary — which met all the requirements of the law.
The situation here seems not dissimilar, in principle, at least, to that dealt with in the opinion in the case of Turner v. Town of Lineville, 2 Ala. App. 454, 56 So. 603, 604, where this court said: "Under the statute governing appeals from judgments of justices of the peace in criminal cases, if no objection to the sufficiency of the affidavit or warrant is raised before the justice, on the trial de novo had on appeal in the circuit or county court, a complaint may be there filed charging the defendant with a criminal offense, though the affidavit and warrant on which the defendant was tried before the justice of the peace did not charge any criminal offense whatever." And see Worthington v. City of Jasper, 197 Ala. 589, 73 So. 116; and Blankenshire v. State, 70 Ala. 10.
So we conclude and declare that appellant, by going to trial in the County Court, without objection, on the affidavit above, waived all defects therein. The Attorney General cites, and well he may, our opinion in the case of Bush v. State, 27 Ala. App. 30, 167 So. 335, as concluding against the contentions of appellant's able counsel on this appeal on the subject presently discussed. We will not repeat what we there said, but consider same applicable to the situation presented.
As for appellant's contention that the complaint filed in the Circuit Court constituted a departure from the prosecution instituted in the County Court, reference is made to our case of Lovett v. State, 30 Ala. App. 334, 6 So.2d 437. There, Judge Simpson ably demonstrated that there is no merit in such contention; nor in the contention that there was error in the matter of the admission into the evidence of the rules and regulations of the Alabama Beverage Control Board — of which the court took judicial notice, in the first place.
As we said in the opinion in the Bush case, supra, we repeat, here: "Appellant appeared, pleaded not guilty, and was fairly tried." His purely technical quibbles cannot avail him here.
The judgment is affirmed.