Kennedy v. State
| Decision Date | 19 August 1958 |
| Docket Number | 8 Div. 286 |
| Citation | 39 Ala.App. 588,106 So.2d 257 |
| Parties | Leonard KENNEDY v. STATE. |
| Court | Alabama Court of Appeals |
Pilcher & Floyd, Gadsden, for appellant.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.
Kennedy stands convicted of possessing prohibited liquors and of resisting the officers who arrested him.
Considering the evidence in the light of the jury's verdicts of guilt as to both offenses, we find:
Between two and three o'clock in the afternoon of March 8, 1957, three deputy sheriffs of Marshall County with a search warrant went to Kennedy's home on Sand Mountain some three miles north of Albertville.
To gain entrance after knocking in vain, the officers forced some bars off the front door, whereupon Mrs. Kennedy finally came to the door. They presented the warrant to Kennedy who read it.
In the kitchen the searching party found a glass pitcher with a few residual drops which had the odor of wildcat whiskey. Whereupon, one of the officers unscrewed the trap underneath the kitchen sink and retrieved about a half pint of the moonshine. They put it in a pint bottle. There was testimony (without any defense objection) of other caches of beer and whiskey around and about the house, though apparently off Kennedy's curtilage. The trial judge properly charged the jury that they could not find Kennedy 'guilty for any beer or liquor that was found outside the house.' Hence, no error arises from the reception of testimony of these remote finds.
After the discovery the officers told Kennedy he would have to go with them. As Mr. Massey, one of the deputies, related,
Kennedy contends that the State failed to prove that the liquid in the sink trap was fit to drink, i. e., it was a 'beverage.'
Code 1940, T. 29, § 125, sets out the general rule of evidence for prohibition prosecutions, i. e., that the liquor in question has the same color, odor, and general appearance, etc., of a prohibited liquor is prima facie evidence that it is prohibited. Two of the deputies testified (without objection) that the odor was that of wildcat or moonshine whiskey. See Gray v. State, 29 Ala.App. 568, 199 So. 255; Roughton v. State, 38 Ala.App. 17, 77 So.2d 666.
The 'pint bottle' or jar containing the liquor from the trap was in evidence along with its contents. Kennedy claims that this jar had garbage and coffee grounds along with the whiskey to such an extent as to make the mixture undrinkable.
Since the liquor was before the jury, it seems to us the question of fact was, in the circumstances here presented, exclusively within their province as triers of fact. Moreover, the jury could have inferred Kennedy possessed it in potable form before it was poured down the drain.
It is also contended...
To continue reading
Request your trial
-
U.S. v. Martin, 77-3453
...167, 306 So.2d 33 (Ct.Crm.App.1974); Kelley v. State, 55 Ala.App. 402, 316 So.2d 233 (Ct.Crm.App.Ala.1975); Kennedy v. State, 39 Ala.App. 588, 106 So.2d 257 (Ct.App.Ala.1958); Sugar Valley Land Co. v. Johnson, 17 Ala.App. 409, 85 So. 871 (Ct.App.Ala.1920).6 See Jones v. State, 293 Ala. 762,......
-
Temple v. State
...as to its illegal contents. Certainly such fact is insufficient to overcome appellant's presumption of innocence."); Kennedy v. State, 39 Ala.App. 588, 106 So.2d 257 (1958) (The finding of whiskey in a pitcher in the kitchen and of the whiskey in the sink trap, coupled with the defendant's ......
- Miller v. State, 4 Div. 374
-
Wood v. State, 4 Div. 530
...err in granting the State's motion to strike the appellant's motion for a new trial where a discontinuance had occurred. Kennedy v. State, 39 Ala.App. 588, 106 So.2d 257. Appellant contends that the trial court abused its discretion in denying his motion for a mistrial after two empaneled j......