Lane v. City of Tuscaloosa

• Decision Date: 17 December 1914
• Docket Number: 708
• Citation: 67 So. 778,12 Ala.App. 599
• Parties: LANE v. CITY OF TUSCALOOSA
• Court: Alabama Court of Appeals

67 So. 778

12 Ala.App. 599

LANE v. CITY OF TUSCALOOSA

No. 708

Court of Appeals of Alabama

December 17, 1914

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

From a conviction violating a municipal ordinance of the city of Tuscaloosa, Charlie Lane appeals to the Tuscaloosa county court, and on conviction by that court he appeals here Affirmed.

Wright & Fite, of Tuscaloosa, for appellant.

Brown &amp Ward, of Tuscaloosa, for appellee.

BROWN J.

This prosecution was commenced before the recorder's court of the city of Tuscaloosa March 27, 1914, for a violation of an ordinance of that city prohibiting keeping or having in possession for sale spirituous vinous, or malt liquors. The appellant was convicted on the trial in the recorder's court, and appealed to the county court, where he was again convicted, and from that judgment of conviction he prosecutes this appeal.

The evidence was undisputed that the appellant's house was searched by the police authorities of the city on March 24 1914, under a search warrant, and that the officers found 21 half pints of "Paul Jones Whisky" concealed in a davenport; that only a few days before the search one Crider, who was examined as a witness for appellee, bought from the appellant 2 half pints of whisky at appellant's house, and paid him $1 therefor. The appellee also offered in evidence the book of ordinances of the city of Tuscaloosa, containing the ordinance under which the prosecution was commenced, which showed on its face that it was adopted on September 16, 1909, approved by the mayor on September 17, 1909, and published in the Times-Gazette, a newspaper published in the city of Tuscaloosa, on September 18, 1909, covering the offense of which appellant was convicted. (Reporter will set out section 3 of the ordinance appearing in the record, p. 10.)

The appellant, on the authority of Excelsior Steam Laundry Co. v. Lomax, 166 Ala. 612, 52 So. 347, and Adler v. Martin, 179 Ala. 97, 59 So. 597, insists that the court should have given the affirmative charge requested by him in writing, because it was not shown that the ordinance was in force at the time of the alleged offense.

There was no dispute that the ordinance book offered in evidence was the regular ordinance book of the city of Tuscaloosa. In fact, this was admitted by the appellant, and the ordinance, as stated above, showed on its face that it was passed, approved, and published prior to the time of the offense, and under the statute it took effect "from and after its publication." Code, § 1258.

"When things are once proved to have existed in a particular state, they are presumed to have continued in that state until the contrary is established by evidence, either direct or presumptive." Jones on Evidence, § 58; 22 Am. & Eng.Ency.Law (2d Ed.) 1242; Michael v. State, 163 Ala. 425, 50 So. 929; Code, § 1259.

This proof distinguishes this case from the authorities cited and relied on by appellant.

The evidence showing that liquors in unusual quantities considering the kind and nature of the packages, were found concealed in appellant's house in a davenport, an unusual place of concealment, in connection with the evidence that he had made a sale at his house a short time previous to the commencement of the prosecution, justified...