BROWN v. STATE

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Docket Number

8 Div. 121.

Attorney(S)

Donald E. Holt, Florence, for appellant. The court erred in overruling appellant's motion to elect filed prior to calling of the case for trial, as refiled at the close of the State's evidence, and as refiled at the end of the taking of the testimony in the case. Brooms v. The State, 15 Ala. App. 118, 72 So. 691; Id. 197 Ala. 419, 73 So. 35; Code 1940, Tit. 29, §§ 119, 120. The court erred in refusing defendant's requested charges as to accomplice and venue. Dye v. State, 25 Ala. App. 138, 142 So. 111; Horne v. State, 15 Ala. App. 213, 2 So. 768; 19 A.L.R. 2d 1397. MacDonald Gallion, Atty. Gen., and Lucian L. Smith, Jr., Asst. Atty. Gen., for the State. Possession of whiskey in a dry county is illegal, though it was lawfully purchased from a state liquor store in a wet county. Hall v. State, 30 Ala. App. 373, 6 So.2d 30; Code 1940, Tit. 29, § 68. Defendant's guilt of possessing prohibited liquors is question for jury, on conflicting evidence. Davis v. State, 21 Ala. App. 637, 111 So. 314; Pate v. State, 25 Ala. App. 217, 145 So. 500.

Judges

PRICE, Presiding Judge.

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Smart Summary

Factual and Procedural Background

The appellant, Christine Brown, was tried in the Circuit Court of Lauderdale County and convicted of illegal possession of prohibited liquors. Her punishment was fixed at a $50 fine and 90 days at hard labor. The State's sole witness, L. W. Moseley, an Enforcement Division supervisor for the Alabama Alcoholic Beverage Control Board, testified that on September 10, 1966, he went to the defendant's home, asked to buy a bottle of whiskey, received a pint bottle of Lem Motlow whiskey from the defendant, and paid $5.00; the bottle was admitted into evidence. The defendant and her sister-in-law denied the sale. The defendant filed motions including a motion to elect and motions to exclude evidence; the motion for new trial on insufficiency grounds was denied. This appeal followed.

Legal Issues Presented

Whether the trial court erred in overruling the defendant's motion to require the State to elect which alternative averment in the complaint it would rely upon.
Whether the State's witness, Officer Moseley, was an accomplice whose testimony required corroboration and whether the court erred in refusing requested jury charges on accomplice corroboration.
Whether venue was proved and whether the court erred by permitting additional venue proof after the State's case.
Whether the evidence was sufficient to sustain the conviction.

Arguments of the Parties

Appellant's Arguments

The court erred in overruling appellant's motion to elect (filed before trial, refiled at close of State's evidence, and refiled at the end of testimony), citing Brooms v. The State.
The court erred in refusing requested jury charges concerning accomplice testimony and venue; appellant contends Officer Moseley was an accomplice and his testimony required corroboration.
The evidence was insufficient to sustain conviction (motion for new trial on that ground was filed and denied).

State's Arguments

Possession of whiskey in a dry county is illegal even if lawfully purchased in a wet county (citing Hall v. State and statute); possession issue was for the jury on conflicting evidence (citing Davis v. State and Pate v. State).
The court properly allowed further proof of venue before conclusion of argument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brooms v. The State, 15 Ala. App. 118, 72 So. 691	Cited by appellant as authority to require the State to elect among alternative averments in the complaint.	The court noted Brooms was relied upon by appellant but held it had been expressly overruled; motion to elect was properly denied.
Id. 197 Ala. 419, 73 So. 35	Referenced (Id.) in appellant's citation concerning election doctrine.	Included among the authorities the appellant relied upon; court treated Brooms-related authority as overruled.
Joyner v. State, 16 Ala. App. 240, 77 So. 78, certiorari denied, 201 Ala. 696, 77 So. 1000	Holding that where the State relies upon a single transaction, the defendant receives the full benefit of the doctrine of election and is not entitled to require the State to elect between alternative averments.	The court relied on Joyner to reject appellant's motion to elect and denied relief on that ground.
Herring v. State, 16 Ala. App. 98, 75 So. 646	Cited in context of election doctrine.	Listed as supporting authority for the Joyner principle in denying the motion to elect.
Jemison v. State, 40 Ala. App. 581, 120 So.2d 748	Cited in context of election doctrine.	Listed as supporting authority in the court's denial of the motion to elect.
23 C.J.S. Criminal Law § 788	Statement that a detective or police officer engaged in investigating violations is not an accomplice even if instrumental in procuring the specific violation (illustrations include officers purchasing liquor to secure evidence).	Quoted and used by the court to support the conclusion that Officer Moseley was not an accomplice for purposes of requiring corroboration.
Johnson v. State, 36 Ala. App. 634, 61 So.2d 867	Cited in support of the proposition that an investigating officer is not an accomplice.	Referenced by the court as additional authority for holding the officer was not an accomplice.
Ash v. State, 81 Ala. 76, 1 So. 558	Definition that an accomplice is one who could have been indicted and convicted as principal or accessory.	Used by the court to define "accomplice" in considering whether the officer was one.
Dykes v. State, 30 Ala. App. 129, 1 So.2d 754	Cited concerning the definition of accomplice.	Used by the court alongside Ash to define accomplice status.
Leigh v. State, 34 Okl.Cr. 338, 246 P. 667	Statement that one who purchases intoxicating liquor from a bootlegger is not an accomplice of the seller; purchaser is not guilty unless he transports or possesses with intent to violate the law.	Cited by the court to support the view that a purchaser (here, the officer) is not an accomplice of the seller.
Title 15, Sec. 307, Code	Statute indicating the corroboration requirement for accomplice testimony applies to felonies.	The court applied this statutory principle to hold that corroboration of an accomplice is not required in misdemeanor cases like the one at bar.
Mickle v. State, 31 Ala. App. 141, 13 So.2d 100	Cited as authority that the corroboration statute applies only in felonies.	Relied upon by the court to conclude accomplice corroboration was inapplicable to this misdemeanor prosecution.
Judge v. State, 32 Ala. App. 256, 24 So.2d 568	Cited regarding the inapplicability of accomplice corroboration to misdemeanors.	Used to support the court's conclusion that no corroboration requirement applied.
Hall v. State, 30 Ala. App. 373, 6 So.2d 30	Cited in the State's brief for the proposition that possession of whiskey in a dry county is illegal even if lawfully purchased in a wet county.	Referenced in the State's argument; the court did not specifically distinguish or reject this citation and treated possession as a jury question.
Davis v. State, 21 Ala. App. 637, 111 So. 314	Cited to support that guilt for possessing prohibited liquors is a question for the jury on conflicting evidence.	Referenced in the State's brief; the court found the evidence sufficient and denied the new-trial motion.
Pate v. State, 25 Ala. App. 217, 145 So. 500	Cited for the proposition that guilt is a jury question when evidence conflicts.	Referenced in the State's brief; the court's sufficiency determination aligns with this principle.

Court's Reasoning and Analysis

The court first summarized the State's evidence (Officer Moseley's testimony and the admitted bottle) and the defendant's denial. It concluded the evidence was sufficient and properly denied the motion for a new trial on sufficiency grounds.

On the motion to elect, the court observed appellant relied on Brooms but held Brooms had been expressly overruled by Joyner. The court applied Joyner's principle that when the State relies on a single transaction the defendant obtains the benefit of election and is not entitled to force the State to elect among alternative averments; accordingly the motion to elect was properly denied.

Regarding whether Officer Moseley was an accomplice, the court quoted 23 C.J.S. Criminal Law § 788 and cited Johnson, concluding an investigating officer who procures evidence by purchasing liquor is not an accomplice. The court also noted the definition of accomplice (Ash; Dykes) and cited Leigh indicating a purchaser is not an accomplice.

Even assuming the witness were an accomplice, the court reasoned corroboration was not required because the statute requiring corroboration applies only to felonies (Title 15, § 307), and the offense charged was a misdemeanor; the court cited Mickle and Judge to that effect.

On venue, the court noted that when venue has not been proved the trial court may permit the State to introduce evidence to supply the omission at any time before the conclusion of argument (Rule 35), and it did not err in allowing such proof.

Holding and Implications

Affirmed

Holding: The Court of Appeals affirmed the conviction and sentence. The trial court did not err in (1) denying the motion to elect, (2) refusing appellant's requested accomplice-corroboration instructions, (3) denying exclusion of the State's evidence, and (4) permitting proof of venue before conclusion of argument. The direct effect is that the appellant's conviction and punishment stand.

No broader or new precedent was announced; the court relied on existing authorities to resolve the issues presented.

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Christine BROWN v. STATE.

PRICE, Presiding Judge.

The appellant was convicted of the offense of illegal possession of prohibited liquors. Her punishment was fixed at a fine of $50.00 and 90 days at hard labor for Lauderdale County.

L. W. Moseley, the State's only witness, testified that on September 10, 1966, he was Supervisor of the Enforcement Division of the Alabama Alcoholic Beverage Control Board, assigned to the Florence area; that on that date he went to the home of defendant and asked to buy a bottle of whiskey; that defendant handed him a pint bottle of Lem Motlow whiskey for which he paid her $5.00. The bottle of whiskey was introduced in evidence.

Defendant and her sister-in-law, Mrs. Ora Webb, denied that defendant sold whiskey to Officer Moseley, or received any money from him.

The evidence was sufficient to sustain the conviction. The motion for a new trial, on the ground of the insufficiency of the evidence, was properly denied.

The complaint filed by the district attorney charges that the defendant "did sell or have in possession illegally, give barter, exchange, receive, deliver, carry, or ship prohibited liquors," etc.

Counsel insists the court committed reversible error in overruling defendant's motion to require the State to elect under which alternative charge in the complaint it would prosecute the defendant, citing as authority for such contention the case of Brooms v. State, 15 Ala. App. 118, 72 So. 691. The holding of the court in Brooms was expressly overruled in Joyner v. State, 16 Ala. App. 240, 77 So. 78, certiorari denied, 201 Ala. 696, 77 So. 1000. In Joyner, the court pointed out that, where the State relies on a single transaction, the defendant receives full benefit of the doctrine of election and is not entitled to require the State to elect on which alternative averment in the complaint it will rely. See also, Herring v. State, 16 Ala. App. 98, 75 So. 646; Jemison v. State, 40 Ala. App. 581, 120 So.2d 748. The motion was properly denied.

Appellant next contends that Officer Moseley is an accomplice whose testimony is not corroborated, and that the court erred in denying her motion to exclude the State's evidence and in refusing appellant's requested instructions to the jury as to the principle of corroboration of an accomplice. We find no merit in this contention.

This statement appears in 23 C.J.S. Criminal Law § 788, p. 11:

"A detective or police officer who is engaged in attempts to discover violations of the law is not an accomplice of one charged with such a violation, even though the detective may have been instrumental in procuring the specific violation of the law on which the prosecution is based. Familiar illustrations of this principle are found in cases where detectives or other officers, investigating alleged illegal sales of liquor, purchase such liquor for the purpose of securing evidence, * * *." See cases cited in the text.

See also, Johnson v. State, 36 Ala. App. 634, 61 So.2d 867.

Moreover, an accomplice is one who could have been indicted and convicted of the offense charged, either as principal or accessory. Ash v. State, 81 Ala. 76, 1 So. 558; Dykes v. State, 30 Ala. App. 129, 1 So.2d 754.

"One who purchases intoxicating liquor from a bootlegger is not an accomplice of the seller. He is guilty of no offense under the statute, unless after purchasing the liquor he should transport it or should have possession of it with intent to violate the law. These are independent offenses from the sale." Leigh v. State, 34 Okl.Cr. 338, 246 P. 667.

But, even if the State's witness were an accomplice, his testimony did not require corroboration. The defendant here is charged with a violation of Title 29, Sec. 98, Code 1940, which is made a misdemeanor by Sec. 99 of said Title 29. The statute requiring corroboration of an accomplice applies in cases of felony only, and has no application to misdemeanors. Title 15, Sec. 307, Code, supra; Mickle v. State, 31 Ala. App. 141, 13 So.2d 100; Judge v. State, 32 Ala. App. 256, 24 So.2d 568.

One ground of defendant's motion to exclude the evidence, made at the conclusion of the State's testimony, was that venue had not been proved. The court granted the State permission to introduce evidence as to venue. This was not error. The trial court must permit proof of such omission at any time before the conclusion of the argument. Rule 35, Circuit and Inferior Court Rules of Practice, Title 7, Code 1940.

The judgment is affirmed.

Affirmed.