Loudermilk v. State, 58 So. 180

Loudermilk v. State

58 So. 180 | Ala. Ct. App. | 1912

PELHAM, J.

The appellant, being the defendant below, was convicted for violating the prohibition laws. The defendant was a married man, who lived with his family at a different location from the place where he was found by the officers who made a search, and found him in charge of a room shown to have in it a bed and an ice box containing a quantity of ice and between 85 and 90 bottles of beer. In an unoccupied adjoining room there were some 50 empty beer bottles. The appellant testified that he was occupying the room as a private bedroom during the absence of his wife on a visit.

The state examined one Will Pruett, who was present at the time the officers searched the premises, and this witness testified that he was making a social call on the defendant at the time the officers found him there, and had helped himself to a bottle of beer from the defendant’s ice box, and drank it without having been invited to do so. The state subsequently examined a Mrs. Harry Rosen, who testified to having made two purchases of beer in bottles from the defendant at a different time from the occasion when the search was made. The defendant contends that the testimony offered in behalf of the state by the witness Pruett was an election by the state to prosecute for an alleged sale or disposition to Pruett on the time and occasion testified to by him.

The indictment contained five counts (the reporter will set out the substance of the different counts of the indictment), and the state was not required to elect-to prosecute for any one certain offense under any particular count of the indictment, but might prosecute for as many offenses as were charged by the. different counts *170of the indictment, and it was proper for the court to charge the jury in its oral charge that they could find the defendant guilty under more than one count of the indictment if the evidence justified such finding. Several offenses or charges for violating the prohibition laws may be set out in separate counts of the same indictment, and the accused may be convicted upon each one as upon separate indictments.—Acts 1909, p. 91,§ 30; Untreinor v. State, 146 Ala. 133, 41 South. 170.

The defendant offered to prove on cross-examination by two of the state’s witnesses that “a man could drink a dozen and a half or two dozen bottles of beer in a day,” and that it was not unusual for a beer drinker to consume two dozen bottles of beer in a day, and excepted to the action of the court in refusing to allow such proof to be made against the objection of the state’s counsel. The court committed no error in refusing to allow this proof to be made. It is a matter of common knowledge that different persons have different capacities for consumption of such beverages, and the defendant’s capacity in that particular, if relevant for the purpose of explaining the quantity of beer found by the officers in making a search of the defendant’s room, was shown to be unknown to the witnesses by whom the defendant offered to make this proof; and the defendant was allowed, when being examined as a witness in his own behalf, to testify, without objection, to his accomplishment as a beer drinker, and stated that he could drink a couple of dozen bottles of beer a day, and this evidence was before the jury without challenge or contradiction by other testimony. The varying capacities of different persons as beer drinkers was not an issue in the case, and was not a proper subject of inquiry or proof.

It was not improper to allow the official court reporter to read over from his trial notes the question pro*171pounded to and the answer made by a witness for the purpose of refreshing the recollection of the solicitor. The court stated that the reporter’s reading of the question and answer was not to be considered as evidence by the jury, but was only for the information of the solicitor. While the principal purpose in providing for a stenographic report of the evidence given on a trial by an official reporter is to preserve an accurate record of the testimony of the witnesses for subsequent proceedings, there can be no objection to the court’s permitting the use of the notes thus taken for convenient reference of counsel during the trial for the purpose of refreshing the memory.

Whether or not the witness Mrs. Rosen had in the previous year to the time of the commission of the offense endeavored to buy beer from the defendant and he had refused to sell it to her, but gave to her some beer, was entirely immaterial to the issues before the court. It was within the exercise of a proper discretion by the court to refuse to allow the defendant to prolong the cross-examination of this Avitness after she had been examined on direct cross, and redirect examination by reexamining her on the same matters she had already testified to on direct, cross, and rebuttal- examination.—Braham v. State, 143 Ala. 28, 38 South. 919; Whatley v. State, 144 Ala. 68, 39 South. 1014; Cross v. State, 147 Ala. 125, 41 South. 875.

Refused charge No. 1 is substantially covered by given charge B; and refused charge No. 2 is covered by given charges A, B, and C.

The judgment entry fails to set out the amount of the costs, but shows a sentence for a period of 186 days to pay costs of the prosecution at the rate of 40 cents a day. This is erroneous. The judgment should contain a statement of the amount of costs and the number of days’ *172punishment at hard work for the county in lieu of the payment of the costs, at the rate of 75’ cents per day. The judgment of conviction and sentence in lieu of the payment of the fine and the additional period of 40 days added by the court as punishment is a correct judgment and that part of the judgment is affirmed, and the judgment for costs is reversed, and the case remanded that the court below may enter the proper judgment and sentence for costs.—Code 1907, § 7635; Joe Barrentine v. State, 3 Ala. App. 188, 57 South. 1025; Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 116; Evans v. State, 109 Ala. 11, 19 South. 535; Johnson v. State, 94 Ala. 35, 10 South. 667; Herrington v. State, 87 Ala. 1, 5 South. 831; Walker v. State, 58 Ala. 393.

Affirmed in part, and reversed and remanded in part.