Govan v. StateGovan v. State
This appellant has been adjudged guilty of transporting prohibited alcoholic liquors in quаntities of five gallons or more.
The evidence presented by the State was ample in its tendencies to show that about April 1, 1957, the appellant was apprehеnded while driving a panel truck which contained fifty-five gallons of moonshine whiskey.
Over the аppellant’s objections, Mr. E. H. Jones, an Alabama highway patrolman, was permitted to testify that on February 8, 1957, at about 1:00 P.M., he saw appellant “on a 1955 Chevrolet on the Hodge-ville road with approximately nine gallons of moonshine whiskey in his possession.”
The court instructed the jury this evidence was admitted for their consideration only on thе question of identity.
The defense evidence was directed toward establishing an alibi.
Thе admission of the testimony of Mr. Jones necessitates a reversal of this case.
It is fundamental under our decisions that ordinarily evidence of distinct and independent offеnses is not admissible in the trial of a person accused of crime. Baker v. State,
This for the reason that when a defendant is charged by indictment, he must be tried on that indictment. The very purpose of an indictment is to limit and make specific the charges that an accused will have to face. Brasher v. State,
Exceptions to the rule that prior оffenses by an accused are admissible have been developed, where suсh offenses are relevant and'material on the question of knowledge, intent, plan or design, motive, identity, and inseparable crimes as part of the res gestae оf the offense charged. McMurtrey v. State, supra; Mason v. State, supra.
In the trial below the solicitor, in arguing the admissibility of Jones’ testimony,
We cannot hold that the questioned testimony tended to show any pattern. The accused was charged with illegal trаnsportation, not with dealing with whiskey. Mr. Jones’ testimony that the accused was “on a Chevrolet with nine gallons of moonshine whiskey” on an afternoon several weeks prior tо the present offense does not even show transportation. It has no relevancy to the present prosecution.
The court of course instructed the jury that Jones’ testimony was being admitted only on the question of identity of the appellant.
In Mason v. State,
“On the matter of identity we quote from Judge McElroy’s The Law of Evidence in Alabamа, as follows:
“ ‘All evidence tending to prove a person’s guilt of the offense chаrged may loosely be said to identify him as the guilty person. But identity, as here considered, аssumes what may be called a “mark” upon the guilty person; and proposes to show that defendant is the person having that mark, as evidenced by its being there in his commission оf another similar offense. Wigmore, Sec. 410-412. Thus, when it is shown that the person who committed thе offense committed it in a novel and peculiar manner, it may be shown that the defеndant committed other offenses in the same novel and peculiar manner. * * * But evidence of accused’s commission of other offenses which does nothing more than indicate the accused’s inclination or propensity to commit the type оf crime charged is not admissible as tending to show identity. Brasher v. State,249 Ala. 96 ,30 So.2d 31 .’
“We do not think it can be seriously contended that the other three crimes introduced in evidence in the сase at bar have anything in common with the crime alleged in the case at bar thаt would mark the crime charged as having been committed by the defendant.”
The abovе quotation clearly demonstrates that the court erred in admitting Jones’ testimony. Numerоus additional authorities sustaining our view that this case must be reversed because of the court’s ruling admitting Jones’ testimony may be found in 6 Alabama Digest, Criminal Law, <^369(6).
Reversed and remanded.