Couch v. State

• Decision Date: 17 December 1912
• Citation: Couch v. State, 6 Ala.App. 43, 60 So. 539 (Ala. App. 1912)
• Parties: COUCH v. STATE.
• Court: Alabama Court of Appeals

60 So. 539

6 Ala.App. 43

COUCH v. STATE.

Court of Appeals of Alabama

December 17, 1912

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Lucy Couch was convicted of selling intoxicating liquors, and she appeals.Affirmed.

Mathews & Mathews, of Bessemer, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

1.The defendant was tried on an affidavit which charged, omitting the formal parts, that the defendant sold "spirituous vinous, or maltous liquors without a license and contrary to law."

2.There was only two witnesses for the state--Long and Teer--each of whom testified, respectively, that they were together on January 2, 1912, and went to defendant's house at Johns, in Jefferson county, Ala., about 9 o'clock that morning; that there was no one else there at the time, except themselves and the defendant, who is a woman; that they were at the house about two hours, and while there they bought from, paid the defendant for, and drank, several bottles of beer, which were on ice and five or six drinks of whisky by the drink.In the language of one of the witnesses: "We were there in the room with her about two hours, and would buy a drink whenever we would get dry."On cross-examination each of said witnesses stated that they were under employment at $12.50 per week and expenses to run down "blind tigers"; that they did not get any extra compensation for convictions, but that they, as witnesses in this case, were drawing the regular per diem pay and mileage allowed witnesses by law.The defendant, in her own behalf, testified that she did not know and had never seen either of said state's witnesses until this case came up for trial, when she saw them, for the first time, in the courtroom, that she did not sell them any beer or whisky on the day named by them, January 2, 1912, and that she was not at Johns at all on that day as testified to by them; but left Johns on the evening before for the purpose of going to see her husband at Acmer, in St. Clair county, Ala., who works in the mines there, and that she did not return to Johns until the 4th day of January, 1912.On cross-examination she stated that before that time she had not been to Acmer to see her husband in about three weeks; but that he had been down to see her during Christmas.There was other testimony, but we have stated a sufficient amount for an intelligent review of the questions presented by the record.

3.Counsel for defendant argued before the jury "that defendant was not present at the time she is alleged to have sold liquor to the state's witnesses, but had gone to St. Clair county to see her husband, who was a coal miner, making her an honest living. " The part underscored was not an argument, but a statement of fact, which had not been proved, and was not permissible to be proved.However, the solicitor in his closing remarks assumed its truth, and in reply said: "[But] if she[herself] was honest and not violating the law, why wasn't she living with her husband, [who was so making an honest living for her]?"The brackets are ours, to make clear the meaning as we interpret it.There was objection by defendant to this statement of the solicitor and motion to exclude it from the jury on the ground that the argument was improper, and that there was no evidence that she was not living with her husband.Objection and motion was overruled and exception taken.The sense in which the solicitor, by the statement in interrogative form, used the words, "Why wasn't she living with her husband?" is to be determined in the light of and with reference to the evidence, and it is thereupon clear that he meant to state and stated no more than what defendant's own evidence showed, and that was that she was not actually and in fact living with her husband--she actually living, as her evidence showed, at Johns in Jefferson county, and he actually living at Acmer in St. Clair county, Ala. Constructively and in law they may have been living together, while actually and in fact living apart.This depends entirely upon the intention of the parties.Naturally and customarily, however, the wife is by the husband like Ruth was by Naomi--"whither thou goest I will go"--though it often happens that exceptional circumstances of business or other things bid defiance to the heart's dictates and force them to temporarily live actually apart, while constructively and legally living together.Whether this was one of those caseswe do not know, for the evidence is silent.However, the solicitor's statement only meant what the evidence showed, brought out too, as that evidence was, at the instance of defendant, and was not subject to the objection by defendant.No other part of the remarks of the solicitor objected to stated or undertook to state any fact, but was merely an argument--"if she was honest and if she was not violating the law," etc.--entirely permissible, we think, under the evidence.Childress v. State,86 Ala. 87, 5 So. 775;Dennis v. State,139 Ala. 109, 35 So. 651.

4.Defendant's counsel argued before the jury that they should not believe witnesses for the state as they received a salary of $12.50 per week and expenses and $1.50 per day and mileage...