Glover v. State

Apr 7, 1921

6 Div. 93.

Reporters:: , ,
Before:: Gardner

GARDNER, J.

[1] A Ford automobile, found in possession of one Short, and containing prohibited liquors, was seized by an officer, and condemnation proceedings instituted by the state’s solicitor. Appellant interposеd his claim as the owner of the car. The trial court sustained demurrer to claimant’s petition as аmended, upon the ground that it failed to allege that claimant could not, by reasonable diligenсe, have obtained knowledge or notice of the illegal use of the ear, and this ruling is here assignеd as error.

It was helfl in State v. Crosswhite, 203 Ala. 586, 84 South. 813, and State v. One Lexington Automobile, 203 Ala. 506, 84 South. 297, that such petition should contain this averment as in response to the language of the statute. There was a difference ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of opinion in the court as to what was required by way of proof to meet this averment (State v. One Paige Automobile, 85 South. 276 1 ), and upon the proof required these сases have been modified by subsequent decisions. Flint Motor Car Co. v. State, 85 South. 741; 2 One Ford Automobile v. State, 84 South. 760; 3 Bowling v. State, 85 South. 500; 4 One Packard Automobile v. State, 86 South. 21; 5 Briscoe Motor Car Co. v. State, 204 Ala. 231, 85 South. 475; Byles v. State, ante, p. 286, 87 South. 856.

They did not, however, qualify the first-nаmed authorities as to the question of pleading, ■ hut ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only concerning the matter of proof, and the holding there justified the ruling on the demurrer.

[2] Oottnsel argue that the paragraph added by way of first amendmеnt contained sufficient averments to disclose claimant’s ignorance of the use of his car, and therefore he should not have been required .to add the amendment — the result of the ruling on demurrer. In viеw of the rule that pleading is construed most strongly against the pleader, it is doubtful that the language used in thе amended petition should be construed quite as strongly as insisted, but, however that may be, if it were shown that сlaimant was entirely innocent of the use of his car by Short,.having no knowledge or notice thereоf, or notice of any facts to put him on inquiry, then no action on his part would be required, and the additiоn of the language of the statute would add no greater burden to him than was already embraced in thе petition, and of consequence be harmless.

[3] Appellant went to the house of his uncle Monroe McGraw, on the afternoon of September 17, 1919, and insists that while he was asleep at his unclе’s during the night Paul Short took his car, without his knowledge or consent, and carried the same to Dora, where it was seized the following m‘orning, together with about eight gallons of corn whisky. Appellant had previously bеen in the taxi business, and Paul Short was so engaged at the time. There was evidence tending to show they bаd frequently exchanged use of cars; that these two slept together at McGraw’s the night of September 17th, and that during the night .Short took the car which was in front of the house, and went to Dora. Appellant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍uncle McGraw also had a “taxi run,” and a short time previous to this Short had taken over that “run,” and had beеn boarding with Mc-Graw. Appellant .and bis uncle went to Dora the next morning, where they found Short incarcеrated and appellant’s car seized. Appellant stated that he “just went to his uncle’s on a visit;” that it was not on Sunday; that he “went after nothing.” I-Ie did not know his uncle’s occupation, and, further, that was the first timе he had been there in a year or two. He stated he was a farmer. Upon cross-examination the state was permitted, over claimant’s objection, to ask him as to bow much crop be bad planted that year. In this there was no error.

The state was also permitted to prove that а still was found near McGraw’s place, or about a mile or more therefrom, which bad been in oрeration for some time, and also a receipt for so much sugar with Mc-Graw’s name upon it, which’ was found at this still. It is strenuously insisted that this evidence was inadmissible upon this trial. In addition to this proof there was evidеnce tending to show that upon the person of Short was found a book containing an expensе account for sugar and other items, including a worm still, which had the names of McGraw, .Short, and appеllant thereon. It appears that when McGraw was shown the book, as a witness on the stand, he testifiеd he had seen books like it; and testified he guessed it was his little hoy’s.

McGraw was contradicted on the stand by the officers as to what ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he told them in regard to these boys spending the night and *448 sleeping together аt his house. One of the witnesses for the state testified that MeGraw told him the hoys met at his house in the afternoon and stayed all night, and that Short got up and left during the night in the car.

[4] Other circumstances might be referred tо, but we consider a detailed discussion of the evidence unnecessary. Suffice it to say, it has been given most careful consideration, and we are of the opinion there are strong tendencies of the proof going to show a full understanding, if not a confederation, on the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍part of thesе three. concerning the illegal traffic in liquors. We are of the opinion, therefore, the testimony in regard to finding the still and the receipt with the name of McGraw thereon was admissible as a circumstаnce in the case, and that the court below committed no error in admitting the same.

We have treated the questions argued.in brief of counsel for appellant, and, finding no error, the decree appealed from will be affirmed.

Affirmed.

ANDERSON, O. J., and SAYRE and MILLER, JJ., concur.

Notes