Spencer v. State

Alabama Court of Appeals

Spencer v. State

109 So. 2d 756, 40 Ala. App. 93, 1958 Ala. App. LEXIS 112

CourtAlabama Court of Appeals

DecidedOctober 28, 1958

Docket1 Div. 781

StatusPublished

Cited by1 cases

This text of 109 So. 2d 756 (Spencer 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.

Bluebook

Spencer v. State, 109 So. 2d 756, 40 Ala. App. 93, 1958 Ala. App. LEXIS 112 (Ala. Ct. App. 1958).

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Opinions

CATES, Judge.

Delphine Spencer appeals her conviction on a charge of possessing prohibited liquor. She was tried without the intervention of a jury in the Circuit Court of [94]*94Monroe County on November 26, 1957, adjudged guilty, assessed a fine of $150, and sentenced to six months in jail. Due to illness of the clerk of the court below, the time for filing the transcript was duly extended.

The evidence for the State tended to show a deputy sheriff and an A. B. C. Board agent went to the house of Delphine, and there in the yard close to the steps leading to the house, in a carcass of an automobile tire used as a flower bed, they discovered two pints of moonshine whiskey. They also found another pint under the front door steps.

The defendant was not at home at that time. The only two occupants were her seventy-eight year old husband and her five year old son. The State’s only evidence to show that Delphine possessed the whiskey came from a statement attributed by one of the officers to the five year old boy.

The defense adduced proof that, although her seventy-eight year old husband was not able to go away from home, he had arranged for the lease of the premises.

Regardless of whether or not we would consider Delphine as head of the household rather than her husband, and since there is here no field for operation of the common-law doctrine of the wife being coerced by the husband (see Mosely v. State, 19 Ala.App. 335, 97 So. 247; 14 Am.Jur., Criminal Law, § 62), we think it was palpably erroneous for the trial court to have considered the testimony that the five year old boy stated the whiskey belonged to Delphine. As was stated by this court, per Simpson, J., in Flowers v. State, 31 Ala.App. 337, 17 So.2d 285, 286:

“These statements were not of the res gestae, were made out of the presence or hearing of the defendant, and were inadmissible as hearsay. * * * ”

In Dutton v. State, 226 Ala. 1, 145 So. 581, the court, per Anderson, C. J., said:

“It has been well settled by the former decisions of this court that when a case is tried by a judge without a jury, and illegal evidence is introduced, it will require a reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment. * * *”

In Grimes v. State, 38 Ala.App. 94, 76 So.2d 684, there is a thorough review of constructive possession cases under Code 1940, T. 29, § 98. No common pattern of fact, of course, appears in the varied means by which alcoholic beverages may be secreted. Where actual manucaption does not exist, in order for the State to show possession (i. e., constructive possession) beyond a reasonable doubt, there should not be resort to speculation and surmise.

For the error indicated, the judgment below is reversed and the cause remanded.

Reversed and remanded.

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CATES, Judge.

Delphine Spencer appeals her conviction on a charge of possessing prohibited liquor. She was tried without the intervention of a jury in the Circuit Court of [94]*94Monroe County on November 26, 1957, adjudged guilty, assessed a fine of $150, and sentenced to six months in jail. Due to illness of the clerk of the court below, the time for filing the transcript was duly extended.

The evidence for the State tended to show a deputy sheriff and an A. B. C. Board agent went to the house of Delphine, and there in the yard close to the steps leading to the house, in a carcass of an automobile tire used as a flower bed, they discovered two pints of moonshine whiskey. They also found another pint under the front door steps.

The defendant was not at home at that time. The only two occupants were her seventy-eight year old husband and her five year old son. The State’s only evidence to show that Delphine possessed the whiskey came from a statement attributed by one of the officers to the five year old boy.

The defense adduced proof that, although her seventy-eight year old husband was not able to go away from home, he had arranged for the lease of the premises.

Regardless of whether or not we would consider Delphine as head of the household rather than her husband, and since there is here no field for operation of the common-law doctrine of the wife being coerced by the husband (see Mosely v. State, 19 Ala.App. 335, 97 So. 247; 14 Am.Jur., Criminal Law, § 62), we think it was palpably erroneous for the trial court to have considered the testimony that the five year old boy stated the whiskey belonged to Delphine. As was stated by this court, per Simpson, J., in Flowers v. State, 31 Ala.App. 337, 17 So.2d 285, 286:

“These statements were not of the res gestae, were made out of the presence or hearing of the defendant, and were inadmissible as hearsay. * * * ”

In Dutton v. State, 226 Ala. 1, 145 So. 581, the court, per Anderson, C. J., said:

“It has been well settled by the former decisions of this court that when a case is tried by a judge without a jury, and illegal evidence is introduced, it will require a reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment. * * *”

In Grimes v. State, 38 Ala.App. 94, 76 So.2d 684, there is a thorough review of constructive possession cases under Code 1940, T. 29, § 98. No common pattern of fact, of course, appears in the varied means by which alcoholic beverages may be secreted. Where actual manucaption does not exist, in order for the State to show possession (i. e., constructive possession) beyond a reasonable doubt, there should not be resort to speculation and surmise.

For the error indicated, the judgment below is reversed and the cause remanded.

Reversed and remanded.

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109 So. 2d 756, 40 Ala. App. 93, 1958 Ala. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-state-alactapp-1958.

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