62 So. 1023 | Ala. Ct. App. | 1913
— The defendant was convicted on an indictment charging him, in several counts, with selling, offering for sale, keeping for sale, or otherwise disposing of spirituous, vinous, or malt liquors.
As a witness for the state, the sheriff of the county testified, among other things, without objection, that, shortly before the indictment was returned, he found and seized under a search warrant a large quantity of prohibited liquors, finding them in a little back room adjoining and in the upstairs over a brick store, wherein defendant at the time was conducting and carrying on a family grocery business. As to who was in possession of the liquors at the time of seizure was a material inquiry in the case, and the court, therefore, committed no error in permitting the state to introduce in evidence an affidavit of claim made by the defendant to such liquors two days after the seizure, in which he swore that he was in possession of them at the time of the seizure and had “the entire right, title, and interest in and to each and every bottle of the same.” The defendant’s signature and oath thereto were proved by the notary before whom the affidavit was made. This amounted to no more than proving an admission by. defendant of a material fact against himself. The keeping of prohibited liquors in a place not used exclusively as a dwelling is prima facie evidence that they are kept for unlawful purposes. — Acts Sp. Sess. 1909, p. 64, § 4.
There was likewise no error in overruling the defendant’s objection to the introduction in evidence by the state of the search warrant under which the seizure was made, the affidavit upon which the warrant was issued,
Furthermore, if any one or more of the three, either the search warrant, affidavit, or return, was admissible, then an objection to them all as a whole was properly overruled.
Without stopping to consider whether the search warrant and affidavit were admissible, it is clear that the sheriff’s return was. The inference is plain from the recitals of the bill of exceptions that he, the sheriff, was unable, without the aid of this return made by him on the search warrant and affidavit at the time of the seizure, to give a list or description of the liquors then seized, comprising, as they did, such a large quantity. This description was material to enable the jury to determine whether the liquors claimed by defendant and described in his said affidavit of claim were the same liquors that were so seized by the sheriff. A witness may, as the sheriff was evidently permitted to do, refresh his memory by referring to a memorandum made by him, or known by him to state the facts truly, no matter when made, if he can testify that at or about the time it was made he knew its contents and knew it to be true. This lets it in both to refresh his memory and as doc
The sheriff,'in describing the back room in which the liquors were found, and which, as said, adjoined on the rear the brick store in which the defendant was carrying on a grocery business, was permitted to testify, at the instance of the state, over the objection and exception of the defendant, that this room was inclosed by a high, solid Avail fence some 12 feet high. We think this evidence was admissible. The fact that liquors in as large quantity as those here (1,400 half pints and 540 Avhole pints) Avere kept in a place so inclosed that those Avho visited or might visit it were hidden and concealed from the observation of the public is a circumstance tending to shoAV that a “blind tiger” was being conducted at such place.
As a circumstance tending to support the theory that defendant, and not somebody else, as claimed by his witness, was in control and management of the room where the liquors Avere kept, it Avas permissible for the state to prove, not only (as it did do without objection) that this room Avas at the rear of defendant’s store, was recently huilt, and connected with the store by a platform, but also (as it did do over defendant’s objection) that within the same high fence that inclosed this room the defendant kept live stock for use in a coal and wood business conducted by him under the name of the Dothan Wood & Coal Company.
The sheriff, as a witness for the state, further testified in substance, without objection, that, when he went to defendant’s place of business to execute the search
Of course, if the defendant made the refusal either because he had no control over that particular property or because the sheriff had no authority to make the search, his refusal could not he construed as evidence against him. In the state of the evidence, this was a question for the jury under proper instructions.
Afterward the defendant introduced his evidence, which consisted solely of the testimony of one witness, said Will Griffin, the person hereinbefore referred to as being present in the store at the time the sheriff arrived and whom the defendant directed to unlock for the sheriff the door upstairs. This witness testified that he was a clerk, and that while defendant managed and controlled the brick store and the mentioned inclosure behind it, yet he (this clerk) had rented from defend
The defendant requested one charge in writing, which was refused. This will not be considered, however, for the reason that it is not made to appear that it was requested before the jury retired. It will therefore be presumed, in favor of the rulings of the trial court, that it was not requested before the jury retired and was for this reason, if for no other, properly refused. — Hubert Morgan v. State, Infra, 63 South. 21; Donahoo & Matthews v. Tarrant, 1 Ala. App. 446, 55 South. 270; 2 Mayf. Dig. p. 576, § 26.
The record raises 29 questions on alleged errors of the trial court. We have discussed only the principal ones; being those most strongly urged in brief of ap-. pellant’s counsel. Those not discussed by us are so clearly without merit, and our reasons for such a conclusion are so fully indicated by what we have already said, that we deem it unnecessary to further prolong this opinion by a discussion of them — especially since the questions raised in them are neither novel nor interesting, nor of such a character that-a discussion of them would be of any value whatever to the profession.
The judgment of conviction is affirmed.
Affirmed.