Opinion
6 Div. 658.
January 21, 1930.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Hattie Fox was convicted of transporting prohibited liquors in quantity of five gallons or more, and she appeals. Reversed and remanded.
R. M. Montgomery, of Birmingham, for appellant.
Charge A, given for the state, does correctly state the law. To be guilty under the indictment, defendant must have transported liquor in quantities of five gallons or more. Tharpe v. State, 219 Ala. 431, 122 So. 699; Acts 1927, p. 704; Pate v. State, 19 Ala. App. 243, 96 So. 649.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence in the case consisted of the testimony of one witness which tended to prove the state's case. At the request of the state in writing the court gave this charge:
"I charge you gentlemen of the jury that if you believe the evidence in this case beyond a reasonable doubt that this defendant Hattie Fox was transporting liquors or beverages, the sale, possession or transportation of which is prohibited by law in Alabama, and subsequent to November 6, 1927, and within the jurisdiction of this court, then you must find the defendant guilty as charged in the indictment.
"Given, Gardner Goodwyn, Judge."
The prosecution was under Acts 1927, p. 704, wherein it is made a felony to transport certain liquors in quantities of five gallons or more. The charge given in this case requires a conviction, if defendant transported liquors, regardless of the quantity. The law fixes the minimum amount and a charge which ignores this should be refused. Tharpe v. State (Ala.App.) 122 So. 698; Holt v. State, 16 Ala. App. 399, 78 So. 315. Moreover, there were inferences to be drawn from the testimony whereby the jury, in the absence of the charge, might have concluded that the venue was in a different section of the county. The giving of the charge for the state was error.
Ante, p. 193.
Reversed and remanded.