Smith v. State, 8 Div. 591.
| Decision Date | 14 June 1934 |
| Docket Number | 8 Div. 591. |
| Citation | 157 So. 874,229 Ala. 207 |
| Parties | SMITH v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 28, 1934.
Certiorari to Court of Appeals.
Tom B. Smith was convicted of embezzlement, and appealed to the Court of Appeals. The judgment of conviction being there reversed, the state applies for certiorari to the Court of Appeals to review the judgment and decision of that court in Smith v. State, 157 So. 872.
Writ awarded.
See, also, --- So. ---.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
Bradshaw & Barnett and C. P. Almon, all of Florence, for respondent.
The writ of certiorari will be awarded.
It is shown that the city of Florence was collecting the gasoline tax imposed by that municipality and paid by the distributors; that certain companies had paid the tax and had not received credit; that witness Baylor wrote letters to these companies, getting appellant to sign said letters, calling for lists of sales and payments made by them to the city under the ordinance; that replies thereto were received, giving lists and payments by said companies to said official (appellant) of the city; that he, witness Baylor, "showed these replies to appellant who admitted * * * that the amounts * * * had been sent by the respective companies to the city; received; and the same appropriated by appellant to his own use."
The corpus delicti is shown, by the recital in the opinion, that the issues raised were properly submitted to the jury before the last ruling was made.
The undisputed admissions or confessions made by defendant to witness Baylor, and shown by the record, proved his guilt.
Admissions of incompetent evidence are harmless, where the fact to which that evidence relates is otherwise established by competent evidence. 9 Alabama and Southern Digest, Criminal Law, + 1169(2), citing many authorities; James v. State, 24 Ala. App. 322, 135 So. 405.
The question of testimony of auditors in such examinations was touched upon in Kersh v. State (Ala. App.) 153 So. 284, Id. (Ala. Sup.) 153 So. 287, on authority of Sovereign Camp, W. O. W. v. Hoomes, 219 Ala. 561, 122 So. 686. A companion case is Garner v. State (Ala. App.) 158 So. 546.
The certiorari is awarded, and the writ will issue, if necessary, in the premises.
Writ awarded.
All the Justices concur.
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...evidence are harmless, where the fact to which that evidence relates is otherwise established by competent evidence." Smith v. State, 229 Ala. 207, 157 So. 874 (1934). Error in the admission of hearsay testimony is harmless where the testimony is cumulative. Cobern v. State, 273 Ala. 547, 5......
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