83 So. 36 | Ala. Ct. App. | 1919
Lead Opinion
The ordinances of the city of Birmingham are in this class, and that upon which this prosecution is predicated provides:
"Any person who, within the city of Birmingham or the police jurisdiction thereof, solicits or receives any order for spirituous, vinous or malt liquors or any other liquors, or beverages prohibited by the law of the state to be sold, offered for sale or otherwise disposed of in this state, in any quantity to be shipped into the state, or to be shipped from one point in this state to another point in this state, shall be guilty of a misdemeanor; * * * and the taking or soliciting of such orders is within the inhibition of this section, although the orders are subject to approval by some other person, and no part of the price is paid, nor any part of the goods delivered when the orders are taken." City Code of Birmingham 1917, § 1398.
The court being required to take judicial notice of the ordinance, it was not incumbent on the prosecution to set out the ordinance or its substance in the complaint. Miles v. City of Montgomery,
The prosecution had in its possession a paper, conceded in brief of appellant to be a copy of a letter which it proposed to introduce in evidence (which will be set out by the reporter in the statement of facts), purporting on its face to be an order for liquors to be shipped to different persons in the city of Birmingham, addressed to a "Mr. Wray," and purporting to be signed by the defendant. This letter, or copy, is shown to have been obtained by one of the witnesses, while defendant was present, from the defendant's office in the city of Birmingham under a search warrant. In view of this fact, it was permissible for the prosecution to show that Wray was engaged in the liquor business in Chattanooga, and that within a day or so after the date of the letter the kind and quantity of liquors referred to in this letter were received by common carriers, billed to the persons named in the letter, and at the place designated in the letter. This evidence tended to show that the defendant had received from the named persons orders for liquor as charged in the complaint, and the court did not err in overruling the objections to questions made the basis of assignments of error 3 and 4.
If it was error for the court to overrule the defendant's objection to the question made the basis of the fifth assignment of error, and the motion to exclude the answer of the witness, "He told me he was," it was without injury for the reason that the question related to Wray's status at the time of the trial, and not at the time, according to the theory of the prosecution, that the order for the liquors was made. Still if it should be conceded that the answer related to the time of the alleged order, the ruling of the court on the motion to exclude was still without injury, because it was *140
limited solely to this answer, and, with this answer excluded, the positive statement of the witness that Wray was in the whisky business at the time the alleged order was sent would have remained unimpaired before the jury. If it had been disclosed by cross-examination or otherwise that this last answer related to the time of the alleged order, and that all the testimony of the witness was based upon hearsay, and if motion had been made to exclude it, a different question would be presented. Rawleigh Med. Co. v. Hooks,
The testimony of the witness Rowland that he was not then, but formerly had been, in the employ of the express company, and that the book shown the witness was made in the office of the express company while witness was in charge of the office, and that the witness did not make the book nor do the writing therein, was not objectionable, and the defendant's objection thereto and motion to exclude was overruled without error.
The only objection to questions appearing on page 10 of the record was made after the questions had been asked and answered. Moreover, assignment 8 is too general to warrant consideration. Claflin Co. v. Rodenberg,
When the books and records of the Southern Express Company and the Alabama Great Southern Railroad Company were offered in evidence, the only objection made was thus stated: "The defendant objects to the introduction of each of said records being offered in evidence." Under the repeated rulings in this state, such objections are unavailing. Sanders v. Knox,
The letter or copy was properly admitted in connection with the other evidence in the case, and on this evidence the question of the defendant's guilt was for the jury, and the affirmative charge was properly refused to defendant.
Section 29 of the act approved August 20, 1915, provides:
"On all appeals from recorder's courts of such cities, when the same are tried by jury and where the jury shall impose a fine only upon the person convicted, the judge presiding shall be authorized in his discretion to impose additional punishment by way of imprisonment in the city jail, or other place of confinement, or hard labor for the city, as is or may be authorized by law or ordinance for such offense." Acts 1915, p. 304.
And section 1415 of the Code of the city of Birmingham provides:
"Any person, firm, corporation or association violating any preceding section of this chapter shall, upon conviction, be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00), to which may be added imprisonment and hard labor upon the streets or public works, or house of correction of the city for not exceeding six months; provided that no female shall be required to work upon the streets of the city."
Under this statute and the ordinance of the city, the court was authorized to impose the sentence to hard labor upon the streets of the city, as an additional punishment for the offense, and section 1217 of the Code of 1907, and Clark v. City of Uniontown,
There is no error in the record.
Affirmed.
On Appellant's Application for Rehearing.
Addendum
The judgment affirming the judgment of conviction was entered on March 18, 1919, but the sentence was set aside and the cause remanded for resentence. On March 28, 1919, the appellee applied for a rehearing, but for failure of compliance with rule 38 (77 South. vii), requiring appellees to file a brief within ten days after submission, that application was stricken. The court, however, of its own motion, corrected the judgment in so far as it related to the sentence, leaving the judgment in all things affirmed. On May 20, 1919, the appellant filed this application for rehearing, complaining only of such matters as were disposed of by the judgment of March 18th, no point being made as to the correctness of the sentence as affirmed. From this statement it clearly appears that the appellant's application for rehearing comes too late, and an order will be entered, striking the same from the file.
Application stricken. *141
