Phillips v. State

• Decision Date: 30 June 1908
• Citation: 47 So. 245,156 Ala. 140
• Parties: PHILLIPS v. STATE.
• Court: Alabama Supreme Court

47 So. 245

156 Ala. 140

PHILLIPS v. STATE.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Bill Phillips was convicted of retailing liquors without a license, and appeals. Reversed and remanded.

The facts are sufficiently stated in the opinion of the court. The following charges were requested by defendant, and refused: "(1) I charge you, gentlemen of the jury, that if the defendant, Bill Phillips, was acting as the agent of the purchaser in buying the whisky in question, you will acquit him. (2) I charge you, gentlemen of the jury, that if you believe from the evidence that the witness L. D. Wright left the money with the defendant for the purpose of buying the whisky in question, and that the defendant acted only as the agent of the purchaser, L. V. Wright, you will acquit the defendant. (3) I charge you, gentlemen of the jury, that if the whisky in question was purchased by John McFarland and delivered to the defendant you will acquit the defendant. (4) I charge you, gentlemen of the jury, that if you believe from the evidence that if the witness L. V. Wright left the 25 cents with defendant, and that defendant gave the said 25 cents to the witness John McFarland for the purpose of buying the whisky, and that defendant had no interest in the sale then defendant would only be the agent of the purchaser, and defendant would not be guilty. (5) I charge you, gentlemen of the jury, that if one of your number have a reasonable doubt of defendant's guilt you cannot convict defendant. (6) I charge you, gentlemen of the jury, that if you believe from all the evidence in the case that defendant acted as the agent of Wright in procuring the whisky you will find defendant not guilty. (7) I charge you, gentlemen of the jury, that you must believe beyond all reasonable doubt that defendant sold the whisky in evidence before you to the witness Wright, else you must acquit the defendant. (8) I charge you, gentlemen of the jury, that you cannot smell or taste of the contents of the bottle in evidence before you after retiring to the jury room to consider this case. (9) I charge you, gentlemen of the jury, that if you believe from the evidence that L. V. Wright left the money with Bill Phillips, and the whisky was bought from a negro on the railroad, you will find the defendant not guilty. (10) I charge you, gentlemen of the jury, that if you believe from the evidence that Bill Phillips did not sell the whisky to L V. Wright you cannot convict the defendant." In passing sentence upon defendant for costs, the court entered judgment requiring defendant to work out the costs at the rate of 30 cents per day until the same was paid.

Hooten & Overton, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SIMPSON J.

The appellant was convicted, under an indictment charging that he "sold spirituous, vinous, or malt liquors without a license, contrary to law." The bottle and its contents were offered in evidence, and admitted over the objection of the defendant. There is no intimation in the record, at this point, that there was any proposal for the jury to take the bottle out, in their retirement, "to be smelled or drunk or tasted." Wadsworth v. Dunnam, 117 Ala. 662 668, 23 So. 699. There was no error in permitting the bottle to be exhibited in the presence of the court.

The record shows that...