Hensly v. State

52 Ala. 10

• Court: Supreme Court of Alabama
• Decided: January 15, 1875
• Status: Published

Opinion

MANNING, J.

An offence not malum in se, committed by a married woman in the presence and with the knowledge of her husband, is presumed to have been committed by his authority, and he is punishable by indictment for it, if it be an indictable offence.

A witness who says that he bought spirituous liquor of a married woman in the presence of her husband, in quantity less than a quart, testifies thereby that she sold it to him in the presence of her husband. The terms “ buy ” and “ sell ” are the converse of each other, and a witness who says that he bought of another a particular article, affirms that the person with whom he dealt sold it to him. It is not necessary to say further how much, or what the purchaser paid for the article. If the accused desired explanation in that direction, he should have obtained it by a cross-examination or other evidence. The testimony about other sales of liquor by the wife in the presence of the husband was admissible, for the purpose not of convicting the accused for them, but “ to illustrate the character of the sale ” to Spurlock as made by the authority of the husband. Pearce v. The State, 40 Ala. 720. If defendant feared that any other effect would be given by the jury to such testimony, he should have asked of the court a charge thus qualifying it.

The first charge asked was properly refused, because it assumes that the witness did not buy the liquor, as he had testified he did. The second charge asked was also properly refused for reasons hereinbefore indicated.

There is no error in the record, and the judgment of the circuit court is affirmed.