Dunn v. State

• Decision Date: 03 June 1913
• Citation: 8 Ala.App. 410,62 So. 996
• Parties: DUNN v. STATE.
• Court: Alabama Court of Appeals

62 So. 996

8 Ala.App. 410

DUNN v. STATE.

Court of Appeals of Alabama

June 3, 1913

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Earl Dunn was convicted of selling, offering for sale, and keeping for sale or otherwise disposing of intoxicating liquors, and he appeals. Affirmed.

Ernest Lacy, of Jasper, for appellant.

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

THOMAS J.

The defendant was charged with selling, offering for sale keeping for sale, or otherwise disposing of prohibited liquors. There was evidence for the state tending to show among other things, that on the day of and shortly before his arrest defendant sold a pint of whisky to one of the state's witnesses, and that his premises (the store in which he was conducting a restaurant and soda fountain) were searched and 11 1/2 pints of liquor found therein. The court in its oral charge, after instructing the jury on the subject of a sale, then proceeded to instruct them on the subject of keeping for sale as follows: "The Legislature has passed a rule of evidence in that respect, and I will read that to you for guidance and try to explain it to you. It is found in what is known as the Fuller Bill, passed at the same session of the Legislature as the act I read you. Section 4 reads 'That the keeping of liquors or beverages that are prohibited by the law of the state to be manufactured, sold, or otherwise disposed of, in any building not used exclusively for a dwelling, shall be prima facie evidence that they are kept for sale or with the intention to sell the same contrary to law.' That is a rule of evidence that the Legislature has legislated into law that was not the law before the Legislature passed the act and made it the law. I do not know that you understand the term 'prima facie' evidence. Prima facie are two Latin words meaning at first view or on its face (prima means first, and facie means face), on the first blush or first view, so it simply means that if the evidence shows that liquors were kept in a building not used exclusively for a residence, if that was shown, and the evidence closed then and no other evidence was offered, it is sufficient on its face to warrant a conviction." The defendant excepted to the last portion of this charge, that portion which is in italics, and urges in brief that it is erroneous: First, because it, as insisted, is a charge upon the effect of the evidence, prohibited by section 5362 of the Code; and, second, because it fails to state that the evidence of guilt must be so strong as to convince the jury beyond a...