21 So. 2d 339 | Ala. Ct. App. | 1945
This prosecution was based upon affidavit of W. T. Willoughby, shown by the record to be the Sheriff of Morgan County. It charged appellant with vagrancy, and the trial resulted in her conviction. From the judgment pronounced and entered, this appeal was taken.
The court overruled defendant's motion to require the State to elect as to which of the sub-heads of the statute relating to vagrancy it was relying upon for a conviction. However, from the testimony it appears it was relying on Subsection 10 of Section 437, Title 14, Code of Alabama 1940, which provides: "Any person who is a keeper, proprietor or employee of a house of prostitution." There appears also some attempt upon the part of the State to convict under Sub-section 4 of the above Statute, viz: "Any person trading or bartering stolen property, or who unlawfully sells or barters any spirituous, vinous, or malt or other intoxicating liquors."
The settled rule of evidence, and its allowable scope, relative to the above two offenses, has been repeatedly declared in numerous decisions of the appellate courts of this State.
In a prosecution for violation of Sub-section 10 of the statute, supra, it is not permissible to offer testimony as to the character or reputation of the house involved. As far back as the year of 1877, the Supreme Court of Alabama said, as to this, in the case of Sparks v. State,
In Toney v. State,
In our case of Wilson v. State,
We refer also to the case of Nelson v. State,
In our case of Wilson v. State,
The trial of this case was replete with error, as stated hereinabove. The conviction of this appellant was admittedly based upon hearsay testimony, and this the law does not permit nor countenance.
Conviction cannot be predicated upon suspicion. Moon v. State,
Jury may not convict on mere conjecture as to what accused may have done. Hightower v. State,
Mere suspicion, surmise, or conjecture will not sustain conviction. McKinnon v. State,
Practically every exception reserved to the trial court's ruling was well taken. These questions are properly presented for our consideration.
For the errors indicated, and the erroneous action of the trial court in overruling and denying defendant's motion for a new trial, the judgment of conviction from which this appeal was taken is reversed, and judgment is here rendered discharging appellant from further custody in this proceeding. Robinson v. State,
Reversed and rendered.