146 So. 624 | Ala. Ct. App. | 1933
The appellant was tried, and convicted, upon a complaint filed by the solicitor which charged that "he had in his possession spirituous, vinous or malted liquors or beverages, a part of which was alcohol, in violation of law." No objection by demurrer or otherwise was interposed to the complaint, hence no point of decision in this connection is presented.
On the trial the court permitted the state to offer evidence to the effect that the searching officers found in appellant's barn several sacks of sugar. As afterwards determined by the court, this evidence was foreign to any issue involved upon this trial, therefore illegal and inadmissible, and the court in its oral charge said: "Gentlemen, I think I let some testimony go to you that I made a mistake about, and that is the testimony about that seven sacks of sugar. If this man had been charged about with the manufacture of whiskey, that perhaps, would be admissible, but inasmuch as he is charged only with the possession of whiskey, I have reached the conclusion that that testimony, is not admissible and I am going to exclude it and you will forget it as far as is humanly possible."
The testimony, referred to by the court, in the foregoing remarks, was wholly irrelevant, illegal, inadmissible, and hence incompetent; it should not have been allowed in the first instance. Its tendency was clearly prejudicial and injurious. The appellate courts of this state have repeatedly condemned the practice of admitting illegal evidence and afterwards excluding it, and it has frequently been declared that the practice cannot be encouraged, and when the record shows that anything was wrongfully said or done in the presence of the jury by the court, calculated to produce an impression upon the minds of the jury to the prejudice of the defendant, the case will be reversed. Davis v. State,
The state's testimony tended to show that several bottles containing whisky were found upon the premises of the defendant some distance from his home and barn. In the total absence of any evidence to connect the accused with the possession of this whisky, his conviction for possession thereof cannot be permitted to stand. The following decisions are conclusive of this proposition and of this appeal: Ammons v. State,
Reversed and remanded. *363