Bridgeforth v. State

BROWN, J.

The affidavit or complaint on which the defendant was tried charges in the language of the statute then in force that he “sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, contrary to law.” —Acts Spec. Sess. 1909, p. 90, § 291/2.

(1) The demurrer takes the point that the alternative averment, “or otherwise disposed of,” is so indefinite and uncertain in meaning as not to charge an act denounced by the statute with that certainty required by good pleading. There is some force in this point, and the demurrer would be well taken if the statute did not define the meaning and scope of the averment when used in the connection here shown to include “any manner of disposition by which said liquors and beverages may pass unlawfully from one person to another.” — Acts 1909, Spec. Sess. p. 91, § 31; Arrington v. State, 13 Ala. App. 359, 69 South. 385, affirmed by the Supreme Court, 195 Ala. 694, 70 South. 1012; Bush v. State, 12 Ala. App. 260, 67 South. 847; Burt v. State, 14 Ala. App. 125, 72 South. 266.

(2) That the Legislature has the power to prescribe the form of indictment and define the scope of such indictments is not an open question in this state. — Noles v. State, 24 Ala. 672; Jones v. State, 136 Ala. 125, 34 South. 236. The demurrers were properly overruled.

(3) The charge in the affidavit covers the charge of unlawfully transporting prohibited liquors for another. — Arrington v. State, supra; Burt v. State, supra.

(4, 5) The important question presented arises from the refusal of the affirmative charge requested by the defendant; that disposed of, the difficulty of disposing of the other questions disappears. The evidence tends to show that the witness Dean by pre-arrangement with “a white man” went to Cullman and purchased the liquors seised by the sheriff when defendant was arrested, and that this white man agreed to have some one meet Dean at the station with a vehicle to assist him in carrying the liquors away from the station; and the tendency of the evidence was sufficient to afford an inference that defendant was at the station with his conveyance waiting to assist Dean, and that Dean had knowledge of this and, when he left the train with the liquors, he started toward defendant’s vehicle, when he was arrested. Other than this, the evidence has no tendency to connect the defendant with the transaction. Section 7363 of the Code 1907 provides:

“Any person who makes, aids, or abets, or who counsels or procures an unlawful sale or unlawful purchase or unlawful gift or other unlawful disposition of spirituous, vinous, or malt liquors or other liquors prohibited by law from being sold, given away, or otherwise disposed of * * * must, on conviction, be fined not less than fifty * * * nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months, and a conviction may be had for a violation of this section under an indictment for selling spirituous, vinous, or malt liquors * * * contrary to law.”

While to be guilty of aiding and abetting the commission of an offense the person charged must contribute to the result, no particular acts are necessary if by prearrangement or with the knowledge of the principal he is present to render assistance should it become necessary. — Raiford v. State, 59 Ala. 106; State v. Talley, 102 Ala. 25, 15 South. 722; Jones v. State, 174 Ala. 56, 57 South. 31; Swope v. State, 12 Ala. App. 297, 68 South. 562. The complaint, which not only charges a sale, but charges other unlawful disposition is comprehensive enough to cover any one of the several related offenses specified in the statute, and the evidence was sufficient to require the submission of the case to the jury. — Johnson v. State, 172 Ala. 432, 55 South. 226, Ann. Cas. 1913E, 296; Rayfield v. State, 167 Ala. 94, 52 South. 833; Darrington v. State, 162 Ala. 60, 50 South. 396; Bush v. State, supra. The declaration of Dean in the presence of the defendant “that he was expecting the defendant’s hack to meet him” not only tended to show that defendant was there by prearrangement, but tended to show Dean’s knowledge of defendant’s presence at the time and place for the purpose of rendering assistance to Dean. — James v. State, 167 Ala. 14; 52 South. 840.

(6) It was permissible for the state to show that defendant, in coming to the station, followed a more circuitous and less frequented route, and approached the'station on the opposite side from where passengers usually alighted, as circumstances tending to show that he was there to meet Dean and aid him, and the defendant’s objections to testimony tending to show these facts were not well taken.

(7) No duty rests upon the trial court to charge that there is no evidence of a given fact. Such, as has been repeatedly held, assert no proposition of law and may be refused without error.— Kirk v. State, 10 Ala. App. 219, 65 South. 195; Anderson v. State, 160 Ala. 76, 49 South. 460. The unnumbered refused charge was of this class.

We find no error in the record, and the judgment must be affirmed.

Affirmed.