Winchester v. State

• Decision Date: 19 August 1924
• Docket Number: 6 Div. 424
• Citation: 20 Ala.App. 243,102 So. 535
• Parties: WINCHESTER v. STATE.
• Court: Alabama Court of Appeals

102 So. 535

20 Ala.App. 243

WINCHESTER v. STATE.

6 Div. 424

Court of Appeals of Alabama

August 19, 1924

Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.

Tom Winchester was convicted of violating the prohibition law and appeals. Corrected and affirmed.

Jury's verdict in liquor prosecution, finding defendant guilty as charged in indictment, did not authorize court to sentence defendant to hard labor and to also assess a fine and require defendant to work it out; assessment of fine being within province of jury.

Ed Crowe, a witness for the state, testified that on the occasion in question he with others went up to defendant's house, and stopped down the road about four blocks from defendant's house. He was then questioned as follows by the solicitor:

"I want to refresh your recollection. Didn't you testify before the grand jury that you went up there with Mr Jones and stopped in front of Mr. Winchester's house?"

The witness answered that he told the grand jury they stopped down the road, and if he said they stopped in front of the house he didn't remember it. He was further interrogated:

"To refresh your recollection, didn't you tell Mr Willis Jones and Mr. Claude Jones went up to Mr. Winchester's? *** Didn't you tell him that you went to Tom Winchester's? Don't you remember telling him that?"

The witness answered that he didn't remember. He was asked further:

"To refresh your recollection, didn't you testify before the grand jury *** that you went with Mr. Claude Jones in a car and stopped before Mr. Tom Winchester's house; *** Mr. Claude Jones went in the house and got the whisky; came back. Did you testify to that before the grand jury or not?"

Defendant's objections being overruled, witness answered: "No, sir; I don't remember saying we stopped before the house."

Defendant's witness Huff testified:

"Mr. Jones and I, we went down to the hall; that is, Deputy Jones; he asked me to help him; said he had been bothered with whisky a good deal out there and asked me to help him that night--I was over there--we was in what we call the negro dance hall, and he says, 'I will step out here,' and says, 'I will be back in a minute.' He didn't come back; I went out, when I went he had Claude Jones and a quart of whisky, and asked Jones where he got it, said he got it from Ed Crowe, and he says: 'Ed, did you let Mr. Jones have this whisky?' He says, 'Yes, sir.' 'Where did you get it?' He says, 'I got it from Tom Winchester.' I says, 'That is a fact?' He says, 'Yes, sir.' 'Where was Mr. Jones?' He says, 'Mr. Jones went as far with me as Mr. Pearson's store, and he waited there until I went and got the whisky.' Pearson's store is upon a hill. Mr. Jones told me at that time that he got it from Ed Crowe. I went and got it. Ed says, 'Yes, he went and got it for Mr. Jones,' said he got it from Mr. Winchester, and Mr. Jones went as far as Pearson's store. Jones said he did not get the whisky from Mr. Winchester. He said he went as far as the store and waited for him."

In rebuttal, state's witness, Willis Jones, testified in response to the question what was said on the occasion when Huff was present:

"Mr. Huff came out of the hall and around; we went around behind the hall with this boy; *** and I says--We asked him, *** 'Where did the whisky come from?' and he says, 'Me and the negro went and got this whisky.' We asked him who the negro was, and he says, 'Well, I don't know who the negro was.' *** He says, 'I would not know him if I would see him again.' Huff says, 'What kind of looking negro was he?' He described him to him, and Mr. Huff went on and got the negro. He asked him, when he came back, 'Is this the negro?' Told him, 'Yes.' I asked him, 'Where did this whisky come from, Ed?' He says, 'Well, white folks,' he says, 'you want to know the truth about it?' *** He says--raised his head up--he says to Claude; says, 'White folks, we are going to tell the truth about this thing.' Claude says, 'Yes.' *** Ed turned around to Mr. Huff; says, 'Mr. Huff, I am sort of scared to tell this;' says, 'Mr. Winchester is a bad man.' *** And he looked at Claude; says, 'White folks, we are going to tell you the truth;' told him, 'Yes;' *** says, 'well, we got this whisky from Mr. Winchester, Tom Winchester, didn't we?' He says, 'Yes; that is where we got it.' "

At this juncture counsel for the state asked the witness the following question: "Did he say anything about threats Mr. Winchester had made?" Over defendant's objection witness answered: "Yes, sir." He says: "Mr. Winchester had told him, 'You turn me up for selling whisky, and I will kill you.' "

F.F. Windham, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and O.B. Cornelius, Asst. Atty. Gen., for the State.

FOSTER J.

Tom Winchester was indicted by the grand jury of Tuscaloosa county for the crime of selling or otherwise disposing of prohibited liquors, and was convicted in the circuit court by a jury. From this conviction he prosecutes this appeal.

The state's theory, which was evidently believed by the jury, was that Claude Jones and Monroe Garner went to a negro dance hall, where they met a negro named Ed Crowe, who, with another negro, and Claude Jones and Monroe Garner, went to the home of Tom Winchester, the defendant, and bought from him a quart of white liquor for $3.

There are 20 assignments of error, which are all insisted upon by defendant's counsel, but many of them raise the identical question. The more important of these assignments will be dealt with here.

It is insisted that it was error to permit the solicitor to question Ed Crowe as to what he had stated in the grand jury room, and also to permit the solicitor to propound leading questions to this witness. As to the first proposition, the law is well settled that a witness may be questioned as to his testimony before the grand jury, for the purpose of refreshing his recollection, and this was the case here, and the...