Gibson v. State

• Decision Date: 01 June 1916
• Docket Number: 6 Div. 931
• Citation: 14 Ala.App. 111,72 So. 210
• Parties: GIBSON v. STATE.
• Court: Alabama Court of Appeals

72 So. 210

14 Ala.App. 111

GIBSON v. STATE.

6 Div. 931

Court of Appeals of Alabama

June 1, 1916

Rehearing Denied June 22, 1916

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

E.M Gibson was convicted of illegal liquor selling, and appeals. Reversed and remanded.

Brown J., dissenting.

Stallings, Nesmith, Hunt & Judge, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and Hugo L. Black, Sol., of Birmingham, for the State.

PELHAM P.J.

The indictment contains but one count, and charges only a sale of spirituous, vinous, or malt liquors. After the witness for the state had testified at the instance of the state to having purchased a half pint of liquor from defendant within the time covered by the indictment, the state was allowed, over the objection and exception of defendant, to prove by this witness and other witnesses that on an entirely different occasion, and prior to the purchase, they had been in the rear room of defendant's store, and saw stored in there a large quantity of prohibited liquors. The defendant, as seen, was not charged with keeping such liquors for sale, but only with selling, of which there was direct and positive evidence. Under such circumstances, when the state has introduced evidence of a specific act which in itself constitutes the crime and the defendant's commission thereof, as pointed out in the following authorities, the evidence tending to show a keeping for sale was inadmissible. Moore v. State, 10 Ala.App. 179, 64 So. 520; Rash v. State, 69 So. 239; Hill v. City of Prattville, 69 So. 227; Hyde v. State, 68 So. 673; Spigener v. State, 11 Ala.App. 296, 66 So. 896; Moore v. State, 12 Ala.App. 243, 67 So. 789.

The rule announced in the foregoing paragraph is not new, and has heretofore been several times adopted and followed by this court in cases of this same character, as will be seen from an examination of the authorities cited in support of the holding.

"It is a general rule [as stated by this court in applying the rule to a similar case, Moore v. State, 10 Ala.App. 179, 182, 64 So. 520, 521] that it is not permissible to prove or admit circumstances going to show that the defendant committed another offense, or other offenses, of similar character to that charged, except when necessary to show scienter or intent, establish identity, complete the res gestae, show motive, or make out a chain of circumstantial evidence of guilt in respect to the act charged. Mason & Franklin v. State, 42 Ala. 543, and companion case, 42 Ala. 532; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782; McDonald v. State, 83 Ala. 46, 3 So. 305."

If the defendant had been charged with keeping for sale, or if the evidence relied upon for a conviction of the sale charged had been circumstantial in its nature and not positive, direct testimony of a specific act in itself constituting the crime charged and the defendant's commission thereof, then the evidence would have been completed, but not under the circumstances shown here.

The record in this case shows that the state's witness who testified to the sale of the prohibited beverage to him by defendant testified that he went to the defendant's place of business with money given him for the purpose of buying whisky at the instance and direction of waiting deputy sheriffs, and bought the whisky for the purpose of making a case against the defendant for violating the prohibition laws, and that money had been advanced to him to pay his expenses while attending court as a witness against the defendant. This state's witness testified that this sale took place on the 21st day of November, 1914, and this witness was then allowed to testify, against duly reserved exceptions and objections interposed by defendant's counsel, that in the rear room of defendant's place of business on several occasions, but not definitely stated as later than July in the year before the sale in November, he had seen large quantities of bottles of whisky on the shelves, and several cases of whisky on the floor. The deputy sheriffs who procured the witness to make the purchase for the purpose of making a case against the defendant were then permitted, against the duly interposed objection of defendant's counsel, to testify that they had seen "three wagonloads" of whisky in the rear room of defendant's store about the 1st of July, 1914. Likewise, a party who testified he was with the state's witness who testified to purchasing the whisky on November 21, 1914, was permitted, against the defendant's objection, to testify to having seen large quantities of whisky stored in the back room of the defendant's store some time prior to the occasion of the sale testified to.

Conceding that there were no diverse tendencies of the evidence of the defendant's guilt, vel non, of the offense charged against him, and that the jury would have accepted as true the evidence of the state's witness and found the defendant guilty, yet it is difficult to see how the conclusion can be arrived at that the admission of this illegal evidence, if error, was without injury, when the record further shows that the court charged the jury that it was within their province and discretion to pass upon the defendant's guilt or innocence under all the evidence and to place a fine on the defendant of not less than $50 nor more than $500, as a fit and proper punishment under the evidence, and that the jury fixed the fine at $300, and that the court, in addition to this fine and a sentence of 233 days at hard labor for the county in lieu of the payment of costs, imposed by way of...