Plunkett v. State

Alabama Court of Appeals

Plunkett v. State

94 So. 258, 19 Ala. App. 40, 1922 Ala. App. LEXIS 23

CourtAlabama Court of Appeals

DecidedMay 9, 1922

Docket6 Div. 29.

StatusPublished

Cited by2 cases

This text of 94 So. 258 (Plunkett v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Plunkett v. State, 94 So. 258, 19 Ala. App. 40, 1922 Ala. App. LEXIS 23 (Ala. Ct. App. 1922).

Pincite

Opinion

MERRITT, J.

Under an indictment which charged the offense of making or manfacturing alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol, the appellant was convicted of an attempt to commit such offense. The case of Mote v. State, 17 Ala. App. 526, 87 South. 628, is conclusive of the proposition that a conviction of an attempt to manufacture prohibited liquors will be sustained under an indictment charging the manufacture thereof.

There was no error in giving written charge 1, requested by the state. It would be a sufficient answer to the criticism directed at this charge to say, that it must be considered in connection with the court’s oral charge wherein the jury was instructed, “if the evidence shows to your (satisfaction beyond a reasonable doubt that this defendant, since the 25th day of January, in Winston county, beat 3, attempted to do the things alleged in the indictment, that is that he attempted to distill, make, or manufacture alcoholic, spirituous, malt, or mixed liquors or beverages, a part of which was alcoholic, then gentlemen, it would be your duty to convict -him for attempting to do it.” But aside from this, the. expression, “a part of which was alcoholic,” refers only to the word “beverages,” and does not refer to the words “spirituous, malt or mixed liquors.”

Written charge four was properly refused, as it singles out a part of the evidence. The question of the defendant’s guilt ■vel non, in attempting to make prohibited liquor, was properly submitted to the jury, indeed under the evidence disclosed by the record, the question of the defendant’s guilt vel non, of the manufacture of liquor,, could have rightly been left to the jury.

Under a local act approved September 22, 1919, Local Acts 1919, p. Í64, provision is made for holding terms of the circuit court of Winston county at Haleyville in said county. Raising the question for the first time in this court, the appellant insists that this act is unconstitutional and void, in that its going into effect is dependent upon an uncertainty; that is, “that said act shall not become effective until the city of Haley-ville, Ala., or the citizens thereof, shall tender to said county suitable quarters for the holding of said branch court without cost to the county or state.” Section 15. Conceding, which is not decided, that this question can be raised in this court for the first time and that it is properly raised, a full and complete answer to such contention is that, so far as appears from the record in this case, all uncertainty has been dispelled, for in the organization of the court, as set out *42 in the record, it is stated “that the regular fall term of the circuit court for the Haley-ville division of Winston couiity, Ala., begun and held at Haleyville in said county, '* * * beipg the time and place fixed by law for holding said court.” Indeed there is no contentipn on the part of the appellant but that “suitable quarters for the- holding of said branch court,” have been provided, nor that the court was not held in such quarters. Moreover, it is provided in section 13 o5t said act, that, “within 30 days after the passage of this act and its approval by the Governor, the court of county commissioners of Winston county, Ala., shall provide a suitable place for holding said court,” and it apptearihg, as stated before, that the court was held at Haleyville at “the time and place fixed by law,” it will be presumed, nothing appearing to the contrary, that the place provided for, and in which the branch court was held, was that provided for by the commissioners’ court, as declared should be-done by the act.

We find no error in the record, and the judgment appealed from is affirmed.

Affirmed.

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MERRITT, J.

Under an indictment which charged the offense of making or manfacturing alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol, the appellant was convicted of an attempt to commit such offense. The case of Mote v. State, 17 Ala. App. 526, 87 South. 628, is conclusive of the proposition that a conviction of an attempt to manufacture prohibited liquors will be sustained under an indictment charging the manufacture thereof.

There was no error in giving written charge 1, requested by the state. It would be a sufficient answer to the criticism directed at this charge to say, that it must be considered in connection with the court’s oral charge wherein the jury was instructed, “if the evidence shows to your (satisfaction beyond a reasonable doubt that this defendant, since the 25th day of January, in Winston county, beat 3, attempted to do the things alleged in the indictment, that is that he attempted to distill, make, or manufacture alcoholic, spirituous, malt, or mixed liquors or beverages, a part of which was alcoholic, then gentlemen, it would be your duty to convict -him for attempting to do it.” But aside from this, the. expression, “a part of which was alcoholic,” refers only to the word “beverages,” and does not refer to the words “spirituous, malt or mixed liquors.”

Written charge four was properly refused, as it singles out a part of the evidence. The question of the defendant’s guilt ■vel non, in attempting to make prohibited liquor, was properly submitted to the jury, indeed under the evidence disclosed by the record, the question of the defendant’s guilt vel non, of the manufacture of liquor,, could have rightly been left to the jury.

Under a local act approved September 22, 1919, Local Acts 1919, p. Í64, provision is made for holding terms of the circuit court of Winston county at Haleyville in said county. Raising the question for the first time in this court, the appellant insists that this act is unconstitutional and void, in that its going into effect is dependent upon an uncertainty; that is, “that said act shall not become effective until the city of Haley-ville, Ala., or the citizens thereof, shall tender to said county suitable quarters for the holding of said branch court without cost to the county or state.” Section 15. Conceding, which is not decided, that this question can be raised in this court for the first time and that it is properly raised, a full and complete answer to such contention is that, so far as appears from the record in this case, all uncertainty has been dispelled, for in the organization of the court, as set out *42 in the record, it is stated “that the regular fall term of the circuit court for the Haley-ville division of Winston couiity, Ala., begun and held at Haleyville in said county, '* * * beipg the time and place fixed by law for holding said court.” Indeed there is no contentipn on the part of the appellant but that “suitable quarters for the- holding of said branch court,” have been provided, nor that the court was not held in such quarters. Moreover, it is provided in section 13 o5t said act, that, “within 30 days after the passage of this act and its approval by the Governor, the court of county commissioners of Winston county, Ala., shall provide a suitable place for holding said court,” and it apptearihg, as stated before, that the court was held at Haleyville at “the time and place fixed by law,” it will be presumed, nothing appearing to the contrary, that the place provided for, and in which the branch court was held, was that provided for by the commissioners’ court, as declared should be-done by the act.

We find no error in the record, and the judgment appealed from is affirmed.

Affirmed.

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94 So. 258, 19 Ala. App. 40, 1922 Ala. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plunkett-v-state-alactapp-1922.

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