112 So. 461 | Ala. Ct. App. | 1927
In every criminal charge the very first essential is to establish by competent evidence, beyond a reasonable doubt, that the crime itself has been committed. Or, as it is usually expressed, the corpus delicti must first be proved. This is just as much the law in violations of the prohibition statutes as in other classes of crime.
In the instant case, the witnesses for the state saw a pint bottle by the flare of a match in the nighttime and for only an instant. Neither of them ever had the bottle in possession, or applied any of the usual simple tests to ascertain the character of the contents. Over the objection and exception of defendant, these witnesses were permitted to testify that, in their best judgment, the bottle contained whisky or rum. It is a general rule that a witness must state facts and cannot state his opinion as to their existence. There are some exceptions to this rule, among which are that, as to matters with which he is specially acquainted and which cannot be specifically described, a witness may express his opinion (1 Wharton, Evidence, par. 512; Walker v. State,
Without the foregoing testimony, which should have been excluded, there was no evidence of the corpus delicti and the defendant was entitled to the affirmative charge as requested.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
