Rosenberg v. State, 59 So. 366

59 So. 366 | Ala. Ct. App. | 1912

PELHAM, J. —

The defendant was convicted of a violation of the prohibition laws.

Appellant’s counsel insist in brief on a motion to strike certain portions of the bill of exceptions. The record shows no submission on motion; nor could the court look to the ex parte affidavit attached to the brief as a part of the record, had the motion been submitted for the purpose of correcting the recitals in the transcript certified by the clerk of the court as correct.— Prinz v. Weber, 126 Ala. 146, 28 South. 10; Black v. Pate, 130 Ala. 514, 30 South. 434. If appellant considered the bill of exceptions signed by the judge incorrect, he should have proceeded regularly under the statute to establish a correct bill.

The words in the indictment “without a license” are .mere surplusage. The indictment was sufficient. — - Scott v. State, 3 Ala. App. 142, 57 South. 413; Mitchell v. State, 141 Ala. 90, 37 South. 407; Olmstead v. State, 89 Ala. 16, 7 South. 775

The argument that the indictment should have alleged whether the prosecution was for the first or second offense (Acts 1909, p. 10, § 3) cannot prevail. No evidence of a former conviction was introduced; nor was the penalty for a second offense, upon which the court must impose an additional sentence for not less than three months, imposed in this case. It is not essential, when the prosecution is for the first offense, that the indictment contain an allegation to that effect.

The court was not in error in admitting evidence to the effect that beer and whisky were found in the defendant’s place of business, and that other sales had taken place when he was in the establishment, as this evidence had a tendency to show his connection with the sale made by the person in his place of business while he was in the front part of the store. The court limited the consideration of this evidence by the jury to showing defendant’s connection with the sale first testified to by the witness Russell. The evidence was sufficient to authorize a conviction, and the court properly submitted that question to a jury. — See Garson v. State, 3 Ala. App. 206, 58 South. 88. In Cook’s Case, 1 Ala. App. 224, 55 South. 269, cited by appellant, the defendant was not shown to have had any connection with the store where the transaction took place, nor to have been in the store when the sale was made. In the instant case, there is evidence tending to show that the store was kept by the defendant, that more than one sale took place when he was in the store, and that beer and whisky were found stored there.

Charge No. 16, refused to the defendant, appears substantially covered in given charges 1 (4), 2 (5), 16 (17), and 35.

Charge 31 is argumentative, and invades the province of the jury in weighing the evidence.

Charge 32 does not correctly state the law. It is not necessary to show an actual participation by the defendant in the sale. — Acts 1909, p. 90, § 29%.

Charge 34 is not such a charge as the court can be put in error for refusing. It is confusing and misleading, and not a clear statement of any principle of law. Read in one way, it predicates knowledge by the negro of the sale not being sufficient evidence to convict the defendant.

The proposition of law upon which instructions were sought in charges 20 and 22 cannot be said to be' substantially covered by any of the given charges. Charge 22 is unquestionably a correct charge, and its refusal is error.

Attention is called to the fact that the defendant should have been sentenced at the rate of 75 cents per day, and not 40 cents, to pay the costs of the prosecution. — Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 116.

For the error pointed out, the case must be reversed.

Reversed and remanded.