Cusimano v. State, 7 Div. 231

• Decision Date: 02 March 1937
• Docket Number: 7 Div. 231
• Citation: 27 Ala.App. 407,173 So. 490
• Parties: CUSIMANO v. STATE.
• Court: Alabama Court of Appeals

173 So. 490

27 Ala.App. 407

CUSIMANO v. STATE.

7 Div. 231

Court of Appeals of Alabama

March 2, 1937

Rehearing Denied March 23, 1937

Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.

Jake Cusimano was convicted of unlawfully possessing prohibited liquor, and he appeals.

Affirmed.

L.B Rainey and Jas. D. Giles, both of Gadsden, for appellant.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb and John J. Haynes Asst. Attys. Gen., for the State.

SAMFORD Judge.

The State's case depends upon the testimony of the witness H.L. Swann, who testifies that he knows the defendant, and that on a morning some time in March, 1935, he saw the defendant in possession of some whisky on that day in Gadsden, Ala., between 6 and 8 o'clock in the morning; that according to his best recollection it was in March, 1935; that he did not know what kind of whisky it was; it was just labeled liquor; that it was bonded whisky; that witness did not smell it; that it was bottled and labeled; that the color was reddish looking; that witness carried it to the city hall in Gadsden and does not know what became of it afterwards; that to his best recollection it was in a dishpan; that there was between twenty and twenty-five bottles, part of which were pints and a part of which were half-pints; that when witness saw the defendant in the back room of a storehouse he accosted defendant and defendant said, "You caught me"; that the defendant had the whisky in the dishpan and had just set it down when he made that remark; that before defendant made the remark, "You caught me," defendant had the whisky in the pan and was carrying it. On cross-examination the witness Swann went into an extended and detailed statement of the location of the building in which the whisky was found, especially with reference to the distance from defendant's place of business, showing that the two buildings were from two to four feet apart.

The principal insistence of appellant is that the court erred in refusing to give at his request the general affirmative charge on the theory that there was no evidence from which the jury could conclude that the contents of the bottles found in possession of the defendant contained whisky. We know, as a matter of common knowledge, that whisky is an alcoholic beverage and its possession is in violation of the prohibition law. That these bottles, testified to by the witness Swann, containing whisky was a...