Cooley v. State, 8 Div. 702

• Decision Date: 20 January 1955
• Docket Number: 8 Div. 702
• Citation: 262 Ala. 136,77 So.2d 488
• Parties: C. F. COOLEY et al. v. STATE.
• Court: Alabama Supreme Court

Page 488

77 So.2d 488

262 Ala. 136

C. F. COOLEY et al. v.STATE.

8 Div. 702.

Supreme Court of Alabama.

Jan. 20, 1955.

Harold T. Pounders, Florence, for appellants.

Si.Garrett, Atty. Gen., Robt.P. Bradley, Asst. Atty. Gen., for appellee.

GOODWYN, Justice.

Bill in equity by the state, on relation of the solicitor of the eleventh judicial circuit and the solicitor of the Law & Equity Court of Lauderdale County, brought pursuant to the provisions of Code 1940, Tit. 29, § 141 et seq., to abate an alleged liquor nuisance.This appeal is by the respondents, C. F. and Mable Cooley, husband and wife, from the final decree making permanent the preliminary injunction and ordering a padlocking of the premises.

In the decree it is stated 'that the respondents within six months prior to the commencement of this suit are guilty of maintaining an unlawful liquor nuisance, to-wit: an unlawful drinking place and one where intoxicants were kept for sale and sold to the general public who resorted to said premises for the purpose of illegally buying and drinking intoxicants, all at the residence known as 627 East College Street'.

Passing over other questions presented, we are at the conclusion, after a careful consideration of the record, that the evidence is not sufficient to support the finding that respondents maintained on the premises a 'liquor nuisance'Code 1940, Tit. 29, § 97'within six months prior to the commencement of the suit'Code 1940, Tit. 29, § 145.

The evidence, taken orally before the court, was, in substance, as follows:

On December 19, 1952, the date the bill was filed, and for several years prior thereto, the respondents resided at 627 East College Street, Florence, Alabama.On March 28, 1950, Mable Cooley was arrested and subsequently convicted for violating the prohibition law.During an extended period of time prior to the filing of the bill, C. F. Cooley was arrested on several occasions in the City of Florence and charged with public drunkenness.There was testimony indicating that he drank about a pint of whiskey every day and was considered an alcoholic.

Law enforcement officers testified that on several occasions subsequent to Mable Cooley's arrest in 1950, and including the six months period just prior to the filing of this bill, the Cooley residence had been searched, with lawful authority, but that no unlawful beverages had been found.On one occasion, however, two glasses which smelled of whiskey were found in the kitchen.During this period various officers watched the Cooley residence and testified that they had observed persons driving up to the Cooley house both in cabs and in private automobiles, enter the house, and stay for various lengths of time.None of these persons was identified, nor were the reasons for their visits determined.

Introduced in evidence, over respondents' objection, was a portion of the testimony of Mable Cooley given by her as a witness during a murder trial which was had on November 17, 18 and 19, 1952.She was asked on direct and cross-examination about her selling whiskey to the defendant Wright on December 19, 1951.She admitted that she did sell whiskey to Wright on that date, and on cross-examination, the following occurred:

'Q.Yourun a bootlegging house, do you?A.My husband works every day.

'Q.I say you are a bootlegger?A.Well, you can buy a drink there.

'Q.How long have you been bootlegging?

'Defendant Objects Because It Is Illegal, Irrelevant, and Immaterial, Objection Sustained.

'Q.How many people came to your house that day for drinks?A.I don't know.

'Q.Your best judgment?A.I don't know.

'Q.Fifty or seventy-five?A.I have never sold that much in a day.

'Q.What is the average sales per day?

'Defendant Objects Because It Is Illegal, Irrelevant, Incompetent and Prejudicial.Objection Sustained, You Said What Was The Average Sale Per Day--Ask About This Day.

'* * *

'Q.Are you still in that business?

'Defendant Objects Because It Is Illegal, Irrelevant, and Immaterial.Objection Sustained.'

On December 16, 1952, a warrant was obtained and the Cooley premises were searched by law enforcement officers.Upon entering the house, officers observed Mable Cooley breaking a pint bottle of bonded whiskey in the sink and discovered ten pints of bonded whiskey in the attic.She was arrested at that time and later convicted for violating the prohibition law.We judicially know that Lauderdale County is a 'dry county'.

The state produced no other evidence from which a determination could be made, or an inference could be raised, that the Cooleys were, at the time of filing the bill, or at any time within six months prior thereto, maintaining a liquor nuisance as charged in the bill of complaint.

Mable Cooley, the only witness on behalf of appellants, admitted in open court that on December 19, 1951, and for some time prior thereto, she had kept and sold prohibited liquors at her residence.She denied keeping any for sale, or selling any, subsequent to that date.She explained her testimony in the murder trial, above referred to, and said that her statement, 'Well, you can buy a drink there', was not a statement of fact existing on the date the testimony was given, but had reference to the incident about which she...