McIntosh v. State

140 Ala. 137 | Ala. | 1903

McCLELLAN, C. J.

The witness Watkins’ testimony was to the effect that at the time which he named, he went to defendant’s blacksmith shop, where there were several persons, and inquired: “Can I get anything?” — meaning and being understood, by at least one of such persons, to mean whiskey; that some one replied : “Look in the barrel;” that he looked in the barrel .in the shop and got a quart bottle of whiskey, and put a dollar on a bench in the shop, went outside the shop, opened the bottle, took a drink of the whiskey, carried the bottle back into the shop and, saying “don’t let anybody bother this,” left it there, and afterwards he sent there and got this bottle of whiskey. The tendency of this evidence was, of course, to show that the other party of this transaction was the defendant, or, at least, the jury might have accorded that tendency. To throw more light on the transaction and to give additional strength to such inference it would have been obviously proper to prove that the whiskey belonged to the defendant, though he may not have been present in person when the sale was made to the witness, or that he had whiskey for sale, or that he received several consignments of whiskey about that time, or that about that time he had made other sales of whiskey. All and each of these facts had a legitimate tendency to show that the whiskey purchased by the witness was the defendant’s property and was sold to the witness by the defendant, in person or through an agent. It is the sort of case that illustrates the exception to the rule against proof of other offenses or other acts. The evidence went to show defendant’s identity as the person who in reality made the sale to the witness.—Sellers v. State, 98 Ala. 72, and authorities there cited; Mitchell v. State, ante. p. 118; Miller v. State, 130 Ala. 1.

On the principles declared in the cases of Hair, et al. v. Little, et al, 28 Ala. 236, 248, and Furham v. Mayor, etc., of Huntsville, 54 Ala. 263, we hold that the exception to the remark of the Judge made to the defendant in the presence of the jury while he was being examined as a witness in his own behalf, “Your memory seems to be remarkably clear about other things, and very cloudy about this,” was well taken.

That part of the oral charge of the court which is in these words: “Is it reasonable that a white man, who admits that he is practicing a deception on his employer, would carry to a negro and have placed in his blacksmith shop four bottles of liquor, when it has been further shown that this blacksmith shop was the rendezvous always of a number of idle negroes, especially on Saturday evening, when from six to twenty would gather there,” should not have been given. One or more of the postulates of the charge is abstract; and it is in a sense a charge on the weight of the evidence, or an argument by the court against the defendant on the evidence.

There is no merit in the other exceptions reserved on the trial.

Reversed and remanded.