Self v. State

• Decision Date: 23 March 1926
• Docket Number: 7 Div. 137
• Citation: 21 Ala.App. 304,107 So. 719
• Parties: SELF v. STATE.
• Court: Alabama Court of Appeals

107 So. 719

21 Ala.App. 304

SELF v. STATE.

7 Div. 137

Court of Appeals of Alabama

March 23, 1926

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Oliver Self was convicted of violating the prohibition laws, and he appeals. Affirmed.

Leeper Wallace & Saxon, of Columbiana, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H Brown, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant, appellant here, was convicted for a violation of the prohibition law (Code 1923, § 4615 et seq.)--selling whisky. The jury fixed the fine at $100, and as an additional punishment the court imposed a sentence of three months hard labor for the county. From the judgment of conviction, he appealed.

The state insisted, and offered evidence tending to sustain its insistence, that on a certain Sunday in January, 1924, at his home in Shelby county, this appellant sold a quart of whisky to state witness R.G. Collins, and also sold a quart of whisky, at the same time and place, to state witness C.W McLeod. Each of said witnesses gave direct testimony to this effect. The defendant not only testified that this was untrue, and that he sold no whisky whatever to the state's witnesses Collins and McLeod, but he also offered the testimony of several other parties who were there present, each of whom testified that no such sale of whisky was made by the defendant. Thus an irreconcilable conflict in the evidence was presented, and was of course for the determination of the jury.

It is earnestly insisted by counsel for appellant that it was error for the court to allow the solicitor, on cross-examination of defendant's witnesses, to propound questions seeking to establish the fact that this defendant had, upon some former occasion, distilled or made liquor, or dealt in or handled liquor. However improper this line of inquiry may have been it was allowed by defendant without objection or exception; therefore we are unable to give the appellant such benefit as may have resulted therefrom had the matter been properly presented here. In the absence of objection and exception, we cannot put the court in error in matters of this character. The propositions of law stated by counsel for appellant in this connection are sound, but, as before stated, the question is not presented for our consideration.

Refused charge 2 is practically identical with given charges 1 and 5; its refusal therefore cannot avail the defendant.

Charge 4, refused to defendant, was bad in not hypothesizing a probability of innocence founded upon the evidence in the case. This charge has been condemned by the Supreme Court in the case of Edwards v. State, 87 So. 179, 205 Ala. 160.

Charges A and B were the affirmative charges. They were properly refused, as there was a conflict in the evidence which made a jury question....