RICE, J.
¶1
Appellant was convicted for a violation of what is commonly called the “Five Gallon Law” (Gen. Acts 1927, p. 704).
¶2
The appeal is on the record proper without bill of exceptions.
¶3
The demurrers to the indictment were properly overruled. Wilkerson v. State , 23 Ala. App. 520 128 So. 777 Hayes v. State , 23 Ala. App. 524 128 So. 774 Id. ,221 Ala. 389 128 So. 776
¶4
In the absence of a bill of exceptions, it is now too well known to require the citation of authority that, ordinarily, this court will not consider the giving or refusal of written charges. The refused charges appearing in the record will not be considered.
¶5
We find no prejudicial error, and the judgment is affirmed.
¶6
Affirmed.
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Case posture Posture Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.
Walter Alexander was convicted of transporting prohibited liquor in quantity of five gallons or more, and he appeals.
Affirmed.
Count 1 of the indictment charges that defendant did, since the 15 day of December 1927 transport more than five gallons of whisky. Count 2 charges that defendant did, since the 15 day of December, 1927, in Mobile County, Alabama, transport whisky in quantity of more than five gallons, contrary to law, etc.
Objections taken by the demurrer are: (1) That it is not alleged that more than five gallons of whisky were transported by defendant at one and the same time; (2) that the indictment is so vague and uncertain that defendant is unable to determine whether he is charged with a felony or a misdemeanor; (3) that it is not alleged that the whisky mentioned contained alcohol or was spirituous, vinous, malted, or other intoxicating liquor; (4) that, for aught appearing, defendant was transporting whisky from a state or place outside the state of Alabama and into another state outside the state of Alabama; and (5) that the act of the Legislature upon which the indictment is based is invalid, in that it violates section 45 of the Constitution.
Defendant's refused charges sought to instruct the jury (1) the affirmative charge; (2) that under the indictment the defendant could not be found guilty of transporting five gallons or more of whisky at one and the same time; (3) that the act under which the indictment was framed is unconstitutional, and hence the defendant could not be found guilty; (4) that, if the jury believed defendant transported shinny and not whisky, they should find him not guilty; (5) that, if they believed defendant was a passenger in the automobile in which said whisky was transported, did not drive said automobile, and did not own or possess said whisky, they must find him not guilty; and (6) that the indictment is indefinite and uncertain, and defendant could not be found guilty of a felony thereunder. Source: CourtListener
