Opinion
2 Div. 374.
April 19, 1927.
Appeal from Circuit Court, Perry County; H. F. Reese, Judge.
Alf Wilson was convicted of selling or having in possession prohibited liquors, and he appeals. Affirmed. The original complaint and affidavit upon which defendant was tried in the county court charged that defendant "did violate the prohibition law." The defendant appealed to the circuit court, where the complaint and affidavit were amended, to charge that defendant "did sell, or have in his possession illegally, prohibited liquors or beverages." Defendant's demurrer takes the point that the amended complaint is different from the original and charges another and different offense; that the cause was begun in the county court upon a void affidavit, and the state has no legal right to file a complaint in the cause appealed from the county court on a void affidavit.
A. W. Stewart, of Marion, for appellant.
Brief of counsel did not reach the Reporter.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
The complaint, if considered as an amendment, was legally amended. There was no departure from the original complaint. Denham v. State, 18 Ala. App. 145, 90 So. 129.
We regard the controlling and only material question in this case to be: Was there sufficient evidence against the defendant to go to the jury? In other words, under all the evidence, was the accused entitled to the affirmative charge? No brief has been filed here in behalf of the appellant, but it is manifest that appellant takes the position he was entitled to have the verdict directed in his favor. We cannot so hold, however. In our opinion, a jury question was presented by the evidence which tended to show, without dispute, that the searching officers found in his place of business a bucket practically full of whisky. The testimony discloses that the bucket of whisky was sitting upon a table in the kitchen of defendant's restaurant, and that the defendant and others were present in the restaurant when the whisky was found on the table in the kitchen. The defendant strenuously denied any and all knowledge of the whisky being there; also that he had anything to do with the whisky. He could not, or did not, explain how the whisky happened to be in his kitchen on the table. The rulings of the court in connection with the filing of the complaint by the solicitor in no manner involved the substantial rights of the accused. It is apparent that he suffered no injury in this connection. The law governing the issue involved upon this trial was stated fully, fairly, and ably by the trial court in its oral charge. The oral charge fairly and substantially covered such of the refused charges as contained correct statements of the law; therefore the court will not be put in error for refusing said charges. The judgment of conviction, from which this appeal was taken, is affirmed.
Affirmed.