Maisel v. State

• Decision Date: 14 January 1919
• Docket Number: 1 Div. 289
• Citation: 17 Ala.App. 12,81 So. 348
• Parties: MAISEL v. STATE.
• Court: Alabama Court of Appeals

81 So. 348

17 Ala.App. 12

MAISEL v. STATE.

1 Div. 289

Court of Appeals of Alabama

January 14, 1919

Rehearing Denied April 8, 1919

Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr. Judge.

Max Maisel was tried by the court without a jury for a violation of the prohibition law, was convicted, and from the judgment he appeals. Affirmed.

Inge &amp Kilborn, of Mobile, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

SAMFORD J.

There is but one question insisted upon by counsel for appellant and that is whether the facts justify the judgment of conviction. Questions of fact, where the evidence is taken ore tenus, are always the most difficult for appellate courts to deal with. The atmosphere of the trial, the personal contact with the parties and witnesses, their appearance, manner on the stand, the expression of the faces of witnesses during cross-examinations, hesitancy of answers to questions in efforts to evade--all these things are absent from the appellate court when it comes to consider the record, and hence the courts, in their effort to render correct judgments, have adopted the rule that, where the trial is had by the court without the intervention of a jury and the testimony is given ore tenus, the findings of the court on the facts will not be disturbed on appeal, unless plainly contrary to the weight of the evidence. Mulligan v. State, 15 Ala.App. 204, 72 So. 761; Hackett v. Cash, 196 Ala. 405, 72 So. 52; Finney v. Studebaker Co., 196 Ala. 422, 72 So. 54; Ross v. State, 15 Ala.App. 187, 72 So. 759; Patterson v. Milligan, 12 Ala.App. 338, 66 So. 914. And this notwithstanding Acts 1915, p. 939; Ross v. State, 15 Ala.App. 187, 72 So. 759; Ross v. State, 198 Ala. 701, 73 So. 1001. Any other rule would be unwise, and impracticable of application.

Section 4 of an act approved January 23, 1915 (Acts 1915, p. 9) provides that the keeping of prohibited liquors in any building not used exclusively for a dwelling shall be prima facie evidence that such liquors are kept for sale, etc. These facts, when proven, become a presumption of law, which in the opinion in Roman, Trustee, v. Lentz, 177 Ala. 71, 58 So. 438, is differentiated from presumptions of facts, which last presumptions are overcome by positive, direct, and uncontradicted testimony to the contrary as in L. & N.R.R. Co. v. Marbury, 125 Ala. 254, 28 So. 438, 50 L.R.A. 620, and A.G.S.R.R. Co. v. Moody, 90 Ala. 46, 8 So. 57. Where the facts are proven establishing the legal presumption of guilt, the rebutting evidence does not nullify or destroy the presumption arising out of proven facts, which is itself an evidential fact for consideration in determining...