Moore v. State

• Citation: 64 So. 520,10 Ala.App. 179
• Court: Alabama Court of Appeals
• Decision Date: 22 January 1914
• Parties: MOORE v. STATE.

64 So. 520

10 Ala.App. 179

MOORE v. STATE.

Court of Appeals of Alabama

January 22, 1914

Appeal from City Court of Montgomery; B.M. Miller, Judge.

Gus Moore was convicted of selling spirituous liquors without a license, and contrary to law, and he appeals. Reversed and remanded.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The defendant was tried on an indictment charging in two separate counts the sale of spirituous, vinous, or malt liquors without a license, and contrary to law. No charge of keeping for sale was made under either count of the indictment, and two of the state's witnesses testified directly and positively to sales made by the defendant to each of them. The verdict of the jury was a finding that the defendant was "guilty as charged," fixing a fine of $200. The only questions presented for review are certain rulings on the evidence during the course of the trial.

The court permitted the defendant to show on the cross-examination of the state's witness Nicholson, as affecting his bias, ill will or feeling against the defendant, that the defendant at one time had the witness arrested for mortgaging a cow; and it was not error for the court to refuse to allow the defendant to go into the details of the transaction, and show that the cow had been taken away by a Mr. Rushton, and that the witness was still indebted for the cow. It is proper to ask a witness if he was not unfriendly with the party against whom he testifies on account of his indebtedness to such party; but it is not competent to ask him simply if he was not indebted to such party. Sanford v. State, 143 Ala. 78, 39 So. 370.

The paper writing that the bill of exceptions recites was shown this witness, and offered in evidence by the defendant, is not set out, and no data furnished this court by which it can pass on the rulings of the lower court in connection with the admissibility of the paper as evidence.

The indictment in its two separate counts alleged two sales of prohibited beverages, and, the state having proved by direct and positive testimony two sales of whisky to have been made by the defendant, one to the state's witness Latimore on June 14, 1913, and one to the state's witness Nicholson on the fourth Sunday in January, 1913, this constituted an election as to the crimes charged in the indictment upon which the state relied for a conviction and it was error to permit the state to subsequently show, in support of its case by another witness, one Dilliard, that he had bought whisky and beer and gin from the defendant at different times at his place of business, and that he was there in May, 1913, and saw bottles, and men drinking, and the defendant, with a quart bottle, dispensing whisky in a drinking glass. Nor would the attempt of the court ex mero motu to limit this testimony "for the purpose of seeing...