62 So. 386 | Ala. Ct. App. | 1913
The defendant was convicted of selling whisky to one Charley Burton. At the conclusion of the state’s evidence the defendant moved to exclude it on the theory that it was not sufficient to make out a prima facie case, ivhich motion was overruled by the court. If defendant had rested at this point, when there was probably merit in his position, the lower court might have been reversed for overruling the motion; but this we need not and do not decide, since the defendant proceeded to offer evidence himself, which led to rebuttal evidence by the state, whereby we are of opinion that on the whole evidence the matter of the guilt or innocence of the accused was properly submitted to the jury, and that they were justified in reaching the verdict they did. The state’s evidence, at the time it rested, was entirely circumstantial and perhaps inconclusive as to what was contained in the half-pint whisky bottle sold by defendant to Charley Burton at defendant’s soda fount, and was not perhaps sufficient to exclude a reasonable hypothesis that it contained something else than liquor; but it often happens, as it did here, that a defendant by his testimony, when subjected
Defendant admitted passing the bottle over the counter to Burton and receiving money from him in return, as testified to by the state’s witness, but he says that the bottle contained grape juice sold by him from his soda fountain, and not whisky; and in explanation of how he came to be in possession of the whisky bottle and of Burton’s buying the grape juice in a bottle, rather than in a glass over the counter, which was the usual way defendant sold it, defendant said that before state’s witness, Keeton, and Burton, the purchaser, came'in the store, Burton had already been in there, and that Burton and defendant’s partner, Wright, went into a side room to take a drink furnished by Burton; that Burton at the time had two half-pint bottles of whisky,
What we have said would render it unnecessary to consider the motion for a neAv trial, if we had authority to do so. Section 2846 of the Code, with reference to appeals from judgments overruling motions for neAv trials, has no application to criminal cases.
We find no error in the record, and the judgment of conviction is affirmed.
Affirmed.