12 So. 2d 106 | Ala. Ct. App. | 1943
The case was tried without a jury.
The appeal is from a conviction of driving a motor vehicle upon a highway of this State while intoxicated. Code 1940, Title 36, Sec. 2.
While the defendant's guilt was not abundantly sustained by the evidence adduced, we do think, and hold, that the proof was sufficient to support the lower court's conclusion on this issue.
The cause must be reversed, however, for the admission of illegal evidence.
The evidence was not without conflicting inferences, and the rule is that the admission of illegal evidence raises the presumption of injury, necessitating a reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment. Booker v. State,
The contention presented by the State's evidence was that the defendant, while intoxicated, was seen to drive his automobile on the highway on a certain night — about 1:30 A.M. — in the town of Collinsville. Later, about three o'clock in the morning, he was arrested at a restaurant in Gadsden.
It was incompetent and inadmissible to prove that when he was arrested in Gadsden he was "drinking". This was no part of the res gestae and proof thereof was error. Phillips v. State,
It is also declared to be the general rule that in a prosecution for a particular offense, it is not permissible to adduce evidence showing defendant guilty of other offenses disconnected with the crime charged. Ala. Digest, Criminal Law, 369(1).
Consonant with the foregoing principle, we must hold that there was also error in allowing the State to prove that the defendant had previously had cases against him in Etowah County for reckless driving. Ala. Digest, Criminal Law, 369(1), supra; Gladden v. State,
In view of a reversal, it is also observed that there was impropriety in the form of questions propounded to the State's witnesses seeking to elicit proof of intoxication; such is typical: "What was his (defendant's) condition there with reference to being drinking or intoxicated?" The substance of the answers to such questions in most instances was that defendant was "drinking". This does not suffice to prove the charge of driving while intoxicated. Although the degree of intoxication is immaterial, Holley v. State,
After careful study of the case, we think that the errors noted were of sufficient prejudice to necessitate the granting of another trial to the defendant. Accordingly, the judgment is reversed and the cause remanded.
Reversed and remanded.
