Carey v. State Ex Rel. Almon

89 So. 609, 206 Ala. 351, 1921 Ala. LEXIS 123

• Court: Supreme Court of Alabama
• Decided: May 12, 1921
• Docket: 8 Div. 313.
• Status: Published

Opinions

MILLER, J.

The bill of complaint seeks to have condemned and forfeited to the state an automobile under section 13 of an act approved January 25, 1919. Gen. Acts 1919, p. 13.

The bill as amended charges that this automobile was near the station ,of the Louisville & Nashville Railroad, on May 12, 1919, in Decatur, Morgan county, Ala. The defendants brought from the train two suit cases, containing 24 quarts of whisky each, and placed them in the car. Immediately the car and the whisky were seized, and the defendants arrested, by an officer of the law. The car was not moved, after the whisky was placed in it, before both were seized and the defendants arrested.

The bill avers that the car was there to be used, and the defendants intended to use it to illegally convey said whisky from one point in Morgan county, Ala. to another point therein, and that the defendants owned and were in possession of the car.

[1] This is a highly penal statute. It must be strictly construed. It allows an automobile which has been or is used for the illegal conveying of any prohibited liquors or beverages from one point in the state to another point within the state by the owner to be contraband and forfeited, when the bill alleges and the proof shows it.

[2] This bill as amended avers that these defendants owned the car; it does not aver that the car had been used by them for the illegal conveying of prohibited liquors from one point in the state to another point in the state. Does it aver that the car is used for the illegal conveying of prohibited liquor from one point in the state to another point in the state? This is essential. It must be clear in the bill and clear in the proof, to get the condemnation of the court and forfeiture to the state of this car. The car is standing still; defendants place the whisky therein; it is not moved therafter before the car and whisky are seized and the defendants arrested by an officer of the law. The whisky is not conveyed in the car; tlie whisky is, not transported in the car by them, or either of them. The car is not moved by either defendant from one point to another point with the whisky. It is stationary. The car must be used in illegally conveying the whisky from one point to another before it can be forfeited. There can be no conveying or transporting by a car of whisky without some movement of the car. There can be no conveying or transporting of whisky by a car from one point' to or toward another point in Alabama, without any movement of the car. Gen. Acts 1919, p. 13, § 13; Frazier v. State, 203 Ala. 276, 82 South. 526; Molton v. State, 105 Ala. 18, 16 South. 795, 53 Am. St. Rep. 97.

The demurrers of respondents to the bill of complaint as amended should have been sustained, and decree to that effect is rendered by this court.

Reversed, rendered, and remanded.

ANDERSON, O. J., and McCLELLAN, and SAYRE, JJ., concur.