Denham v. State

Alabama Court of Appeals

Denham v. State

93 So. 43, 18 Ala. App. 464, 1922 Ala. App. LEXIS 149

CourtAlabama Court of Appeals

DecidedApril 18, 1922

Docket8 Div. 833.

StatusPublished

This text of 93 So. 43 (Denham v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Denham v. State, 93 So. 43, 18 Ala. App. 464, 1922 Ala. App. LEXIS 149 (Ala. Ct. App. 1922).

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Opinion

MERRITT, J.

The defendant, on appeal from the county court, was convicted in the circuit court, under a complaint which charged him with selling liquor.

The witnesses for the state fixed the time of'sale as the middle of the afternoon of December 22, 1918, and there was no error in the ruling of the court in permitting the witness Amos to testify that on this Sunday night the defendant said, in talking with the witness Baird:

“This liquor is better than that I sold you this afternoon,, except this is a little scorched.”

This statement tended to corroborate the testimony of the state, and that of the state witness Baird, that he had bought whisky from the defendant on that Sunday afternoon.

There was error in that part of the oral charge excepted to, and also in the refusal to give written charge 2. As stated before, the state fixed the time of the alleged sale as about the middle of Sunday afternoon, and there was no testimony to the effect that a sale was made on Sunday night, and, if there had been, on proper objection under the facts in this case, it should have been excluded, as it would have been evidence of a separate and distinct offense. Gibson v. State, 14 Ala. App. 111, 72 South. 210; Moore v. State, 10 Ala. App. 179, 64 South. 520; Hammock v. State, 8 Ala. App. 367, 62 South. 322; Askew v. State, 6 Ala. App. 41, 60 South. 455.

For the error pointed out, the judgment appealed from is reversed.

Reversed and remanded.

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MERRITT, J.

The defendant, on appeal from the county court, was convicted in the circuit court, under a complaint which charged him with selling liquor.

The witnesses for the state fixed the time of'sale as the middle of the afternoon of December 22, 1918, and there was no error in the ruling of the court in permitting the witness Amos to testify that on this Sunday night the defendant said, in talking with the witness Baird:

“This liquor is better than that I sold you this afternoon,, except this is a little scorched.”

This statement tended to corroborate the testimony of the state, and that of the state witness Baird, that he had bought whisky from the defendant on that Sunday afternoon.

There was error in that part of the oral charge excepted to, and also in the refusal to give written charge 2. As stated before, the state fixed the time of the alleged sale as about the middle of Sunday afternoon, and there was no testimony to the effect that a sale was made on Sunday night, and, if there had been, on proper objection under the facts in this case, it should have been excluded, as it would have been evidence of a separate and distinct offense. Gibson v. State, 14 Ala. App. 111, 72 South. 210; Moore v. State, 10 Ala. App. 179, 64 South. 520; Hammock v. State, 8 Ala. App. 367, 62 South. 322; Askew v. State, 6 Ala. App. 41, 60 South. 455.

For the error pointed out, the judgment appealed from is reversed.

Reversed and remanded.

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93 So. 43, 18 Ala. App. 464, 1922 Ala. App. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denham-v-state-alactapp-1922.

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