Emerson v. State, 6 Div. 571.

• Decision Date: 29 June 1940
• Docket Number: 6 Div. 571.
• Citation: 29 Ala.App. 459,198 So. 67
• Parties: EMERSON v. STATE.
• Court: Alabama Court of Appeals

198 So. 67

29 Ala.App. 459

EMERSON v. STATE.

6 Div. 571.

Court of Appeals of Alabama

June 29, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Tuscaloosa County; V. W. Elmore, Special Judge.

M. C Emerson was convicted of violating the prohibition law, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Emerson v. State, 198 So 70.

DeGraffenried & McDuffie, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

This prosecution originated in the Inferior Court of Tuscaloosa County. The defendant was charged with the offense of violating the prohibition law of the State.

This appeal is from a judgment of conviction in the circuit court, which court acquired jurisdiction by an appeal from the Inferior Court aforesaid.

In the circuit court, the defendant was tried upon a complaint, filed by the Solicitor, the first count of which reads as follows: "The State of Alabama, by its Solicitor, complains of Miller C. Emerson, alias M. C. Emerson that, within twelve months before the commencement of this prosecution, he did sell, offer for sale, keep for sale, or otherwise dispose of spirituous, vinous or malt liquors, contrary to law".

The trial resulted in the conviction of the defendant on said count, and from the judgment of conviction this appeal was taken.

Upon the trial of the case in the court below the State introduced only one witness, namely, C. C. Miller, who testified upon his direct examination that he was an agent or undercover man for the Alcoholic Beverage Control Board of Alabama, and that he had been sent to Tuscaloosa County by said Board to do undercover or detective work, and that he was engaged in this work in said county from June 22nd to July 3rd, 1939. Miller further testified, in substance, that on the night of June 22nd, 1939, he went to the place of business of the defendant, on the Birmingham highway in Tuscaloosa County, in an automobile and in company with a Mr. Blankenship, another agent or undercover man of said Alcoholic Beverage Control Board, at about 9 o'clock P. M. and that when he reached said place of business he stopped his car and then saw one Stacy Bunn, or Pat Bunn as he was commonly called; that said Bunn came to the car and that the witness told Bunn that he desired to see Mr. Emerson; that Bunn went into the place of business and soon returned and told witness that Mr. Emerson said that if the witness wanted to see him that he would have to come inside; that he then went into this place and into a back room thereof where he saw Mr. Emerson eating at a table, where another man was also seated; that the witness told Mr. Emerson that he wanted to buy a pint of whiskey; that Mr. Emerson then asked the witness who was with him and he replied that his father was with him; that Mr. Emerson sent Stacy Bunn for the whiskey and that Stacy Bunn returned with a pint of rye whiskey, for which the witness paid Mr. Emerson $1.25; that the witness did not drink any whiskey in this place of business; that he did not take any whiskey there; that all of the foregoing happened in Tuscaloosa County, Alabama, at the defendant's place of business, at the time named, and before the witness swore out the warrant in the case; that the witness thought he told the defendant that he was a car salesman from Anniston and was looking for a car which had been stolen from him and that his father was in the car parked on the outside.

On cross-examination, this witness testified in substance practically the same as he did upon his direct examination and in addition testified also that he did not know the man who was sitting with the defendant, at the table, when the witness approached the defendant and asked to buy the whiskey; that he did not know whether this man was Mr. Walker, or not; that he did not know Mr. Shirley Brown and did not know whether the man sitting at the table with the defendant was Shirley Brown.

After the above witness had testified, the State rested its case, and thereafter the defendant introduced six different witnesses, viz: Marvin L. Walker, James Steen, Shirley Brown, Mrs. Cora Henderson and Stacy, or Pat Bunn, none of whom were impeached, and each of whom testified, clearly and emphatically, that the defendant, M. C. Emerson, did not in person, or through the aid and assistance of Pat Bunn, or any other person, sell or deliver to Miller, the State's only witness, any spirituous, vinous or malt liquors as testified to by him. Each of these witnesses was at this place of business from the time Miller arrived there until he left.

Admittedly Miller was an undercover man, or detective, for the Alabama Alcoholic Beverage Control Board. He went to the place of business of the defendant, where, according to his own testimony, he misrepresented himself and the other agent who was with him, and importuned, solicited and requested the defendant to sell him whiskey in violation of law. He did not want this whiskey for his own consumption, or any other personal use. His business was, and the service for which he was employed and for which he was being paid by the Alabama Alcoholic Beverage Control Board was, to buy spirituous, vinous or malt liquors in violation of law, and then prosecute the seller, or sellers, for selling it.

In the case of Borck v. State, 39 So. 580, 581, which was a case involving the illegal sale of...