Corkran v. State

BRIGKEN, J. [1] A careful examination of the entire record in this ease and of all the evidence adduced upon the trial in the court below convinces us that the court erred in giving the general affirmative charge for the state. This case is not unlike that of Mixon v. State, 14 Ala. App. 11, 70 South. 949, on authority of which the judgment of the lower court in the ease at bar is reversed, and the cause remanded. .[2] An attempt to commit a misdemeanor, which is purely statutory; and not malum in se, is not indictable as a separate misdemeanor, unless made so by statute. Whitesides v. State, 11 Lea (Tenn.) 474; Com. v. Willard, 22 Pick. (Mass.) 476; Rex v. Bryan, 2 Stra. 866. This case was tried before the adoption of the act approved February 25, 1919, known as the .“bone dry law” (and which appears to be very appropriately named). Under that law, it is made unlawful for any person to have, possess, operate, or locate any apparatus, plant, or structure for the distilling or manufacturing of any kind of prohibited liquors or beverages. Pam. Acts 1919, p. 11. [3] There is no merit in the contention made by defendant’s counsel relative to the failure of the solicitor to file a brief statement of the case in the circuit court, as required in other misdemeanor cases, on appeal by se tion 6730 of the Code of 1907. It is expressly provided that all prosecutions for a violation of any of the provisions of the prohibition law, now or hereafter to be enacted, may be begun by affidavit and that when begun by affidavit the prosecution may continue, no matter in what court or before what judge the trial shall be had. upon the affidavit upon which it was originally begun, etc. Acts 1915, p. 32, § 32. Reversed and remanded.