Costello v. State, 130 Ala. 143

Costello v. State

130 Ala. 143 | Ala. | 1900

HARALSON, J.

The witness for the State, Jesse Lilze, to wliom the alleged intoxicants were sold, testified that lie was fifteen years old, and had ’been in defendant’s place of business several times; that one Sunday, he went to the storehouse of defendant, and bought some four or five bottles of “stuff” that made him drunk; that he knew the taste of beer, and that the stuff he purchased from defendant and drank, and which made him drunk, tasted like lager beer, had the same effect on him that lager beer had, and that defendant called what lie sold 'to him, “hop-jack.”

The defendant examined one Beckhart who testified, that he was of a firm of wholesale dealers in liquors in Bessemer, Alabama, and his firm had sold defendant large quantities of hop-jack; that he was an expert in liquors and that hop-jack did not contain alcohol in sufficient quantities to intoxicate, but did contain two per cent, of alcohol; that he had never drank any hop-jack and did not- know what effect it would have on him. He was asked: “Would the usual and ordinary use of hop-jack as a drink make one drunk?” and an objection to the question by the State was sustained.

The witness had just testified that he had never drank hop-jack, and did not know what effect it would have on one who drank it. There was no admission on the part of the State, that it was such liquor defendant had sold said Lilze, nor had there been any proof that it Avas hop-jack that defendant had sold to him. Lilze^ evidence tended to show that it Avas lager beer he had bought and drank and which made him drunk, and defendant called it hop-jack. There was no error in such a state of proof, in not allowing the question to be asked.

Nor was there error in allowing the State to show by said witness, Beckhart, that his firm had agreed with *146defendant to pay all the court costs and attorney’s fees, incurred by him in selling their hop-jack, cider and other drinks purchased by defendant from them, the objection to such evidence being, that it was shown that said agreement was in writing, and the evidence was irrelevant and immaterial. The evidence was relevant to show the interest of the witness in the acquittal of defendant, and also to show that defendant knew that hop-jack was an intoxicant. .If not, why require the parties from whom he bought it, to indemnify him against damages for its sale? If lawful to sell it, it would seem he needed no such indemnity. The said written agreement of witness’ firm with defendant, was merely collateral or incidental to the main issue, and was not necessary to be produced in order to let in parol evidence of its contents.—3 Brick. Dig., 439, § 486; Cobb v. State, 100 Ala. 19.

The witness for the State, Jesse Lilze, had testified that he had bought the “'stuff” that, made him drunk at defendant’s store on Sunday. On the cross-examination of the defendant, testifying in his own behalf, the solicitor asked him : “If he did not leave his store door open on the Sunday that the witness, Jesse Lilze, ■claimed to have come there and bought the bottles of what the defendant called hop-jack?” to which question defendant objected, because it called for illegal and irrelevant evidence. The court overruled the objection, and the defendant answered, “that it was on Sunday that he had sold the bottles of hop-jack to the witness.” ’There was no error here. The purpose of the evidence was to corroborate, the State’s witness, Lilze, which it did.

The court refused charges numbered 2, 3, 5 and 6, requested by defendant. ITis counsel say in brief, they do not insist on either of them except 'the 5th. That charge was properly refused. It assumed that the liquor sold by defendant to the witness, Lilze, was hop-jack, and the evidence on the part of the State tends to show that it was lager beer.

No error appearing, the judgment of the lower court is affirmed.