McCormack v. State

| Ala. | Nov 15, 1901

TYSON, J.

This appeal is prosecuted from a judgment of conviction upon the charge of selling spirituous, vinous or malt liquors to a person of known intemperate habits. To authorize ¡the conviction, the sale must be made to a person of intemperate habits and the seller must have been shown to have had knowledge of such habits. In other words the jury must be convinced by the evidence beyond a reasonable doubt of the existence of these facts: the sale of spirituous, vinous or malt liquor’s, the intemperate habits of tire person to whom the sale is alleged to have been made, and a knowledge on the part of the defendant of such habits. — Jones v. The State, 100 Ala. 88" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/jones-v-state-6515317?utm_source=webapp" opinion_id="6515317">100 Ala. 88. Of course, the burden of establishing each and all of these facts is upon the State. For the purpose of tracing knowledge to the defendant of the intemperate habits of Aycock it was entirely competent for the State to prove the contents of the paper in defendant’s possession written by Ayco-ck’s wife in which she told him of his habits. Nor was it necessary for the State, before being allowed to offer this evidence, to have demanded of defendant the production of the letter. So, too, there was no error in permitting witness Lee Aycock to testify thait he had told defendant not to sell his brother whiskey. Likewise it was competent for the State to prove by Brock that Aycock was frequently within itlie twelve months preceding the trial under the influence of intoxicants. The same may be said of the statement of the witness Will Aycock that his brother had been a man of intemperate habits for (the past six years. This testimony not only tended to show the habits of Aycock, but also knowledge on the part of the defendant of those habits. — Atkins v. The State, 60 Ala. 45" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/atkins-v-state-6510017?utm_source=webapp" opinion_id="6510017">60 Ala. 45; Smith v. The State, 55 Ala. 1" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/smith-v-state-6509334?utm_source=webapp" opinion_id="6509334">55 Ala. 1; Tatum v. The State, 63 Ala. 147" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/tatum-v-state-6510397?utm_source=webapp" opinion_id="6510397">63 Ala. 147.

The interest- of a witness in the cause may always be shown as affecting the credibility of his testimony. It was doubtless upon this theory that the solicitor was permitted on cross-examination of Woodward, the proprietor of the Palace saloon and the employer of the defendant, to aslc him if a prosecution was not pending against him for the same offense. There was no error in this.

The exception to the portion of the oral charge of the court can avail the defendant nothing. It was too favorable to him, in that it exacted, too high a degree of proof. It required the State to prove to the satisfaction of the jury a sale of the liquor by defendant, etc. “Before it can be said that the mind is satisfied of the truth of a proposition, it must be relieved of all -doubt or uncertainty, and this degree of conviction is not required” in any case. — Torrey v. Burney, 113 Ala. 504; Dennis v. The State, 118 Ala. 79" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/terry-v-state-6517544?utm_source=webapp" opinion_id="6517544">118 Ala. 79; L. & N. R. R. Co. v. Gidley, 119 Ala. 527; A. G. S. R. R. Co. v. Burgess, Ib. 564; Abbott v. City of Mobile, Ib. 599; Moore v. Heineke, Ib. 639; Coghill v. Kennedy, Ib. 667.

Charge 1 refused ito defendant was abstract. There was no evidence that defendant was at home asleep from about 11 o’clock on August 7th until night. On the contrary the evidence shows that he 'ate his dinner and supper together about the hour of 6 o’clock in the afternoon of that day.

Every fact postulated in charge 2 may have been believed by the jury, and yet the defendant would not have ■been entitled to a verdict of acquittal, if (the jury believe that the sale of liquor was made by him about dusk of the evening of August 7th.

There is no error in the record. Judgment affirmed.