Denham v. State

• Decision Date: 18 April 1922
• Docket Number: 8 Div. 833.
• Citation: 18 Ala.App. 464,93 So. 43
• Court: Alabama Court of Appeals
• Parties: DENHAM v. STATE.

93 So. 43

18 Ala.App. 464

DENHAM v. STATE.

8 Div. 833.

Court of Appeals of Alabama

April 18, 1922

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Wm. A. Denham was convicted of violating the prohibition law, and he appeals. Reversed and remanded.

See, also, 90 So. 129.

p>Page Street & Bradford, of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

MERRITT, J.

The defendant, on appeal from the county court, was convicted in the circuit court, under a complaint which charged him with selling liquor.

The witnesses for the state fixed the time of sale as the middle of the afternoon of December 22, 1918, and there was no error in the ruling of the court in permitting the witness Amos to testify that on this Sunday night the defendant said, in talking with the witness Baird:

"This liquor is better than that I sold you this afternoon, except this is a little scorched."

This statement tended to corroborate the testimony of the state, and that of the state witness Baird, that he had bought whisky from the defendant on that Sunday afternoon.

There was error in that part of the oral charge excepted to, and also in the refusal to give written charge 2. As stated before, the state fixed the time of the alleged sale as about the middle of Sunday afternoon, and there was no testimony to the effect that a sale was made on Sunday night, and, if there had been on proper objection under the facts in this case, it should have been excluded, as it would have been evidence of a separate and distinct offense. Gibson v. State, 14 Ala. App. 111, 72 So. 210; Moore v. State, 10 Ala. App. 179, 64 So. 520; Hammock v. State, 8 Ala. App. 367, 62 So. 322; Askew v. State, 6 Ala. App. 41, 60 So. 455.

For the error pointed out, the judgment appealed from is reversed.

Reversed and remanded.