Hyde v. State

• Decision Date: 13 May 1915
• Docket Number: 886
• Citation: 68 So. 673,13 Ala.App. 189
• Parties: HYDE v. STATE.
• Court: Alabama Court of Appeals

68 So. 673

13 Ala.App. 189

HYDE v. STATE.

No. 886

Court of Appeals of Alabama

May 13, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

James Hyde was convicted, and appeals. Reversed and remanded.

Pinkney Scott, of Bessemer, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

THOMAS J.

The affidavit upon which defendant was tried contained a single count, which charged only a sale of prohibited liquors.

The evidence for the state consisted of the testimony of two witnesses, Veitch and Sorrell, both detectives employed by the licensed liquor dealers, and who each testified that on Sunday, June 14, 1914, they went together and in company with one Bean to the defendant's home, where the witness Veitch, in the presence of said Sorrell and Bean, bought from defendant some beer and whisky, and that there were two other persons at defendant's home at the time, one Patton and one Nunnally. The solicitor was then permitted, over the objection and exception of defendant, to ask one of these state's witnesses, said Sorrell:

"Whether or not just prior to this time--Sunday, June 14, 1914--he had seen a large quantity of whisky being carried to the defendant's house."

The witness answered, over the objection and exception of defendant:

"Yes; between May 21 and June 14, 1914, I saw it on the road all the way down to the house. It was being carried in a dray. I saw it unloaded in defendant's yard at the gate. I saw casks and barrels, and something in a sack. I could not swear it was whisky, but it came from a liquor house in Bessemer--Marks Liquor Company."

If the defendant had been charged with keeping for sale prohibited liquors, which offense can usually be established only by circumstantial evidence, or if the evidence relied on for a conviction of a sale had been circumstantial and not positive, would have been entirely competent. Allison v. State, 1 Ala.App. 206, 55 So. 453; Wash Rash v. State, 68 South. ---- Coates v. State; 5 Ala.App. 182, 59 So. 323. But where, as here, he is only charged with a sale, and the evidence relied on for establishing his guilt is not circumstantial, but positive (the two state's witnesses mentioned testifying to it), the rule is different. Moore v. State, 10 Ala.App. 179, 64 So. 520. If the testimony of these witnesses as to the sale be believed by the jury, then the defendant should have been found guilty, and, if not believed, then he should have been discharged, although he may have previously and only a short time before ordered and received a car load of liquor. It could add nothing, therefore, to the force of the testimony of these witnesses as to the main fact, the sale, for them or either of them to testify to a collateral fact which, even though it be true, does not prove the main fact, and which, even if it could prove or tend to prove the main fact, had no stronger foundation for a belief of its truth than the testimony of the same witnesses that testified to the main fact.

Under the complaint, which charged only a sale, if the jury believed the testimony of these witnesses as to the main fact, the sale, then the collateral fact was entirely immaterial; and, if...