93 So. 499 | Ala. Ct. App. | 1922
Lead Opinion
The second count in the indictment followed the language of the statute, Acts 1919, p. 1086, § 1, and therefore was not subject to the demurrer interposed.
The evidence to sustain a conviction was obtained, while the officers were making a search of defendant's premises without a search warrant, and for this reason the evidence of the officers was objected to, and, objection being overruled, exception was reserved. We have recently held that this was not error. Banks v. State (Ala.App.)
The witness Lane, testifying in behalf of the state, said that —
"He found a lard can that held about twenty gallons and two pieces of pipe in his (defendant's) dining room and a barrel of beer out in his crib; that it was a bucket of some kind for a cap; the can he found had been used around the fire, smoked; the condition of the inside of the can showed it had been mash in there, beer, it smelled like beer; that he was familiar with whisky stills, had seen them in operation, a good many of them over a long period, a good many years."
Counsel for the state was then, over the timely objection and exception of defendant, permitted to ask the witness this question, "Was it suitable for making whisky?" to which the witness answered, "It was." The court having sustained a demurrer to the first count of the indictment, it is clear that the inquiry could not relate to the barrel of beer found in the crib, for the reason that under the second count the prosecution related alone to an apparatus, which under section 2 of Acts 1919, p. 1086, approved september 30, 1919, must be commonly or generally used for or that is suitable to be used (italics ours) in the manufacture of prohibited liquors. Whether the articles referred to constituted such apparatus, the possession of which is condemned by the statute, is a question for the jury, and whether they were "suitable to be used" for that purpose was a material inquiry and directly involved in the trial of the cause; it being a material ingredient of the offense denounced by the statute.
A witness cannot substitute his opinion or conclusion for that of the jury. Harris v. State,
On a prosecution for using abusive language in the presence or hearing of females, a witness may give his opinion as to whether the females were close enough to have heard the language spoken, as being the best method of conveying to the jury the loudness of the voice at time the words were spoken, Rollings v. State,
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Affirmed under mandate of Supreme Court, Ex parte State ex rel. Atty. Gen., in re Griggs, 207 Al. 453,
Dissenting Opinion
I cannot agree with the majority opinion in this case, and the following express my ideas on the question of evidence, upon which I disagree with may associates:
The witness Lane testified for the state that he found at the defendant's house a lard can that held about twenty gallons, and two pieces of pipe in this dining room, and a barrel of beer out in his crib; that a bucket of some kind was used for a cap; the can we found had been used around the fire, *469 smoked; the condition of the inside of the can showed it had been mash in there, beer, it smelled like beer; that he was familiar with whisky stills, had seen them in operation, a good many of them, over a long period, a good many years. The court thereupon allowed the witness to answer "that it (what was found there) was suitable for making whisky." In this ruling there was no error. This character of evidence was a conclusion of facts, which are denominated by our courts "shorthand rendering of facts," to distinguish them from mere gratuitous opinions and conjectures of the witness.
We can draw no reasonable difference between this statement and the statements that, on a prosecution for using abusive language in the hearing of females, a witness May state that in his opinion the females were near enough to have heard it, Rollings v. State,
The Rowlan Case, relied on by the majority opinion, seems to lay down this test, as to the introduction of evidence of the character under discussion:
"Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind."
How the fact of the smell of the beer on the lard can, as testified to by the witness Lane, could be reproduced and made apparent to the jury, might be a pertinent inquiry under the Rowlan Case. Moreover, the testimony shows that the can, pipes, and other things found by the witness Lane had all been destroyed.
The principal fact to be proved was that at a particular time the defendant was in possession of a still, apparatus or appliance, or any device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors. The fact that he had at that time in his possession something, some appliance, apparatus, device, or substitute therefor, that was suitable to be used in the manufacture of prohibited liquors, was material and relevant; it had a tendency to prove the principal fact, that being suitable to be used for this purpose, its possession was for such purpose; consequently the law-makers declared in section 2 of the act that —
"The unexplained possession of any part or parts of any still, apparatus, appliance or any device or substitute therefor, commonly or generally used for or that is suitable to be used in the manufacture of prohibited liquors and beverages shall be prima facie evidence of a violation of this act."
The witness was subject to cross-examination, and if a more particular description of the articles, apparatus, or appliances was deemed necessary, it could have been elicited, and it may be the weight of the evidence lessened or destroyed; but of itself the evidence was admissible.
The above cases, clearly to my mind, lay down the rule as to exceptions which makes the testimony admissible. I can therefore see no reason for making the case at bar an exception to the exception rule.
