Sellers v. State

• Decision Date: 08 June 1893
• Citation: 98 Ala. 72,13 So. 530
• Parties: SELLERS ET AL. v. STATE
• Court: Alabama Supreme Court

13 So. 530

98 Ala. 72

SELLERS ET AL. v. STATE

Supreme Court of Alabama

June 8, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Joseph S. Sellers and Robert Sellers were convicted of violating a local prohibition law by the sale of liquor outside of the police jurisdiction of the city of Montgomery, and they appeal. Affirmed.

The testimony for the state tended to show that Joseph S. Sellers and Robert Sellers were carrying on a general merchandise business a short distance from the corporate limits of the city of Montgomery, and that Cornelius Sellers was their clerk; that on December 25, 1891, the said Cornelius sold to one George Bonham, for Anderson Flinn, 50 cents worth of whisky; that this sale was made "at the dwelling house of defendants." After the state had elected to prosecute for this sale, which was proved by its testimony, it introduced one Barnes as a witness, who testified that about a week or 10 days before said 25th December, he got from Robert Sellers, one of the defendants, a gallon of whisky at said dwelling house, which was drawn from a barrel, "but that Joseph S. Sellers, the other defendant, was not present at the time, and that he [Barnes] had a few days previous to that time requested Robert Sellers to purchase for him in the city of Montgomery a gallon of whisky, for use during the Christmas holidays, and a few days after said order he got the whisky." Each of the defendants moved the court to exclude the testimony of the witness Barnes from the jury on the grounds (1) that the matters so testified to were in respect to a different act, and at a different time from that for which the state had elected to prosecute; and (2) that said matters so testified to were illegal and irrelevant, and did not even tend to show the guilt of defendants, or either of them, of the sale of the whisky on December 25th. The court overruled said motion to exclude, "and permitted the said evidence to go to the jury, to show the scienter with which each prior sale was made," and to this ruling each of the defendants separately excepted. The defendant Joseph S. Sellers then moved the court to exclude as to him all of the testimony of the witness Barnes, so as to limit this fact to his codefendant, on the ground that there was no evidence even tending to connect him with the commission of said act testified to by said witness. The court refused said motion, and the said Joseph S. Sellers duly excepted. The state then introduced another witness, who testified to substantially the same thing as the witness Barnes had done and further testified that, while he ordered only one gallon of whisky, the said Robert Sellers had allowed him to have a gallon at one time and a half gallon at another time. The same motions to exclude this witness' testimony and the same rulings thereon were made, and the same exceptions reserved as to this witness Barnes. The defendant Robert Sellers, who was introduced as a witness in behalf of the defendants, testified that he knew nothing whatever of the sale of the bottle of whisky bought by witness Bonham for Flinn; that he did not authorize it, or have anything to do with it; but that he did, a short time before December 25 1891, purchase, on orders, in the city Montgomery, a quantity of whisky in bulk, and delivered it at his house, as testified to by the witnesses for the state. This witness further testified that his codefendant, Joseph S. Sellers knew nothing of said purchase or sale; "that said Joseph S. Sellers was, at the time said whisky was delivered, and at the time said bottle of whisky was sold, at Ramer, about 13 miles distant, where his family resided and his wife was sick." The defendant Joseph S. Sellers testified as a witness, and denied all knowledge of, or participation whatever in, the sale of any whisky, or the delivery thereof and further testified that at the time testified to by said witness "he was at his home at Ramer, about 13 miles distant, where his family resided and his wife was sick." Upon this evidence the defendant Joseph Sellers requested the court to give the following charge in writing "If the jury believe the evidence, they will find the defendant Joseph Sellers not guilty." The court refused to give said charge, and the said Joseph S. Sellers duly excepted thereto. The defendant Robert Sellers also requested the general affirmative charge in his behalf, and duly excepted to the court's...