Clewis v. State

| Ala. | Feb 2, 1911

McCLELLAN, J.

Under the authority of Higdon v. Stuckey, 169 Ala. 148" court="Ala." date_filed="1910-07-06" href="https://app.midpage.ai/document/higdon-v-stuckey-7365262?utm_source=webapp" opinion_id="7365262">169 Ala. 148, 53 South. 301, overruling Herring v. State, 158 Ala. 31" court="Ala." date_filed="1908-12-17" href="https://app.midpage.ai/document/herring-v-state-7363831?utm_source=webapp" opinion_id="7363831">158 Ala. 31, 48 South. 476, the affidavit here involved was. not. subject to the objection that it was taken .without authority of law, by the judge of the city court of Bessemer, No. sufficient reason is made to appear for a departure from the ruling thus made in Higdon v. Stuckey, supra. There, was no merit in.the criticism of the warrant because it was made returnable before the judge of the city court of Bessemer, rather than to that city court. The appearance bond was conditioned jipon the presence of the defendant at the city court, in. the regular form, and he was. tried by that court.—Toole v. State, 170 Ala. 41, 54 South. 195. The affidavit was sufficient. It was therein positively recited that the defendant committed an. act or acts prohibited by the penal laws — a statement stronger than that usually employed in affidavits, viz., probable cause for believing and does believe that a criminal act or acts has or have been committed by the accused. The omission, in the alternative phase of the affidavit, of .the words ■ “and without a license” was immaterial, since subsequent to the going into effect of the general prohibition law, approved November 23, 1907 (Acts Sp. Sess. 1907, pp. 71-76), no license for the sale of the liquors described in the affidavit was legally issuable.

The affidavit charged an offense committed “within 12 months” before the 16th day of February, 1910, the date of the affidavit. The offense it charged was not referable alone to a violation of penal statutes adopted at the special session, 1909, of the Legislature, more than 12 months after the general prohibition law went into effect in January, 1908. It was therefore not defective, on demurrer, for failure to aver that- the act bracts charged was or were committed after the laws adopted at the special session, 1909, went into effect.

There was no error 'in the rulings on the evidence. The state of George Dyson’s (a witness introduced by the prosecution) feeling towards his (witness’) father was entirely immaterial on the trial of this defendant for a sale of prohibited liquors to the father. The failure of George Dyson, if so, to deny a statement made by his father while testifying as a witness in the mayor’s court, did not tend in any way to impeach or reflect upon the credibility of his testimony as given upon the trial of this defendant in the city court.

The evidential implications arising from silence, when one should deny or explain, do not arise under the circumstances just indicated.

There was of course no obligation on the son to interrupt the trial in the mayor’s court to deny, explain, or correct what his father, 'then testifying, had stated, in order that an implication from his silence might he avoided.

George Dyson testified to the sale of prohibited liquors by defendant to his father. The witness Arthur Dyson likewise testified to a sale by defendant to their father. There was a conflict between these witnesses as to where, in the room, George was when the purchase and sale was made. Regardless of the acceptance of the different views in this particular, it is clear that the purchase and sale of liquor was indisputably shown; these being the only witnesses examined on the issue of sale vel nop. Hence the affirmative charge with .hypothesis was properly given to the jury at the instance of the prosecution. If the jury had been convinced that George Dyson was wholly discredited, impeached, and had ignored his entire testimony, still the uncoptradicted testimony of Arthur Dyson justified the affirmative charge as given.

There was no error in respect of the court’s ruling on the objection to the argument of the solicitor.

Affirmed.

Dowdell, C. J., and Anders'on and Sayre.' JJ.,' concur.