Kelly v. City of Anniston

• Decision Date: 13 January 1910
• Citation: 51 So. 415,164 Ala. 631
• Parties: KELLY v. CITY OF ANNISTON.
• Court: Alabama Supreme Court

51 So. 415

164 Ala. 631

KELLY v. CITY OF ANNISTON.

Supreme Court of Alabama

January 13, 1910

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

W. O Kelly was convicted of selling whisky contrary to a city ordinance, and he appeals. Affirmed.

Tate &amp Walker, for appellant.

C. H Young, for appellee.

SAYRE J.

Appellant was convicted of selling whisky contrary to the ordinance of the city of Anniston. Witnesses for the prosecution testified that, while they were looking through cracks in a fence into an alley in the rear of a pool room in the city of Anniston they saw defendant and one Elder emerge from the pool room and stand together in conversation. Their testimony went to show that during the time defendant passed a bottle to Elder, Elder handed a dollar to defendant, and defendant returned a 25-cent piece to Elder. This occurred after night, so that the witnesses' observation of the transaction was more or less obscured. Continuing, the witnesses deposed that, immediately upon the return of defendant and Elder into the pool room, witnesses, who were officers, went into the pool room and arrested them. Defendant and Elder were carried straightway to police headquarters, where they were searched in the presence of the prosecuting witnesses. Over the objection and exception of defendant, interposed to the statement of each fact as it was stated, these witnesses were permitted by the court to testify that when Elder was searched whisky was found on him; that two bottles of whisky, both full and alike, were found upon the person of the defendant; that the bottles contained whisky. We think that nothing more than the statement of the facts which we have made is needful to demonstrate the relevancy and materiality of the testimony, and the propriety of the several rulings made by the trial court.

There was no error in that other ruling of the court, to which exception was reserved, by which defendant was denied the right to have an answer to his question to the witness McClellan: "Did Elder tell you where he was going when he left the house?" That was two to three hours before the transaction deposed to by the witnesses for the prosecution, and was in no sense a part of that transaction. What Elder said could have been indicative of his purpose only. He, in common with the defendant and all the other witnesses, testified that he was present at the time and place in question. We...