88 Ala. 144 | Ala. | 1889
The defendants, Philip Segars and Louis Segars, were jointly indicted for selling spirituous, vinous or malt liquors, without a license. The case, by consent of defendant, was tried by the court, without a jury. The finding and judgment of the court were, that defendant Philip was guilty, and that defendant Louis was not guilty. The appeal is prosecuted by Philip, the convicted.
Testimony was introduced against Louis, against his objection, and to the admission of which he reserved an exception. If he had been found guilty, possibly this would have been error. But this testimony in no way affected Philip, and he had no right to object to it. Louis alone could be injured by it, and he being acquitted, if an error, Philip can not complain of it. We have, then, the simple case of two being indicted for a misdemeanor, of a class which admits of two or more guilty participants in one and the same offense, one of whom was acquitted, and the other convicted. The testimony against Philip was uncontroverted, and was conclusive, while the testimony against Louis did not satisfy the mind of the trial judge.
The theory of the present prosecution, as its implications tend to show, was, either that the two defendants were jointly interested in the store, and in its sales; or that one was the proprietor, and the other his salesman. If the first hypothesis was the true one, then a sale by either in the line of their trade would fix the guilt of each. If the latter, then a sale by the salesman, with the authority, approbation, or acquiescence of his employer, would justify the conviction of each. Offenses of this kind, though perpetrated by one act, are separate offenses, and punished separately. The fruitless though illegal attempt to fix guilt on Louis, is no error available to Philip, whose guilt is uncontroverted. This case is distinguishable from Elliott v. State, 26 Ala. 7 8, and McGehee v. State, 58 Ala. 360, in that the indictment does not charge two separate offenses, and there was no conviction of separate offenses.
If the separate testimony introduced against Louis had not been received, no one could question Philip’s rightful conviction. Being, at most, only offensive to the rights of the former, and doing him no injury, it affords Philip no stronger ground of complaint, than he would have had without such attempt.
Affirmed.
