Sellers v. State

98 Ala. 72 | Ala. | 1893

HARALSON, J.

It is well settled, as a general proposition, that upon the trial of one offense, evidence of another distinct one, though of the same nature, cannot be admitted to show the guilt of the accused.—Ingram v. State, 39 Ala. 247. But, there are well recognized exceptions to this rule, and such evidence is receivable when necessary to prove scienter, to establish identity, or to complete a chain of circumstantial evidence of guilt, in respect to tbe act charged. Ingram’s case, supra; Yarbrough v. State, 41 Ala. 405; Mason v. State, 42 Ala. 532; Gassenheimer v. State, 52 Ala. 314; Curtis v. State, 78 Ala. 12; McDonald v. State, 83 Ala. 48; Stanley v. State, 88 Ala. 154.

Tbe evidence shows, without contradiction, that Joseph S., and his son Bobert Sellers, the defendants, were partners and carried on, in Montgomery county, outside of the city of Montgomery, a general merchandise business, and that Cornelius Sellers, another son of Joseph S., was their clerk and salesman.

As touching sales of liquors by a partnership, our former ruling has been, that a sale by one of the partners, without a license, in the line of their trade, would be sufficient to fix the guilt of each partner; and, if such a sale was made by the clerk or salesman, with the authority, approbation or acquiescence of his employers, it would justify a conviction of each-employers and clerk.—Segars v. State, 88 Ala. 146; Perkins v. State, 92 Ala. 66.

Applying these principles to the facts of this case, we find that the evidence taken altogether, had tendencies — and it was introduced and admissible for that purpose — to show a conspiracy between the defendants to sell liquor at their dwelling-house, near where they kept their store of general merchandise, because, by so doing, fewer suspicions of their guilty conduct would likely be aroused, and the opportunities for detection would thereby be lessened. The number of deliveries of whiskey at their dwelling, and the manner of delivery, justified this theory and suspicion of their guilt. The court confined the State to the sale made by the clerk on .Christmas day, having elected that particular sale, as the one for which it would prosecute. All the other instances of alleged sales, were admitted as tending Lo show the guilty knowledge, or, acquiescence or approbation of the defendants of this offense by their clerk. The circumstances tending to establish this theory of a conspiracy, to carry on an illicit disposition of liquors at their dwelling by the defendants, and that the particular act complained of was done by their knowledge, consent or approbation, may be found in the facts that the alleged sales were made just before Christmas; that the clerk was conveniently on hand at the dwelling, when the liquor was' required, and had access to it, in the absence of his employers, which would not have been likely, if it had been procured, as pretended, as a personal and neighborly act by one of the partners ; that this pretense of neighborly kindness, was probably untrue, since the article was bought, as the evidence showed, not in quantities for which the orders were said to have been given, and in separate packages to suit those persons ordering, but in bulk, and kept in a barrel, and drawn therefrom when needed; that they furnished the bottle, as it would seem, for that sold on Christmas day to Bonham for Elinn; that the witness, Barns, got his whiskey from one of the defendants himself, at the same dwelling-house, on a.n order given several days before Christinas ; that a few days before Christmas another party got from the same defendant, at the same place, a gallon at one time, on the same sort of an order, and a half gallon at another time, without any order; and that all these deliveries were made at the dwelling, an unusual dispensary of accommodation whiskey, and not at the store, where it was more convenient to accommodate customers, and where the deliveries ought to have been made, if no criminal intention were involved, and the transaction were honest and open. These were circumstances, more or less strong, which had tendencies to show that defendants were carrying on an illegal traffic in liquor at their dwelling-house, under the pretense of accommodating their neighbors or friends.

Having such tendencies of proof, these prior transactions to the main one for which defendants were tried, with all the attendant circumstances, were properly allowed in evidence for the consideration of the jury, in determining whether said sale was made in the line of their business, with the guilty connivance of the defendants. The intention on their part was to be inferred or not by the jury from the facts in evidence. The court was requested by the defendants, in the general charge they each asked, to draw this inference for the jury, and to invade their province, — a charge, as we have repeatedly held, of doubtful propriety in a criminal case, and should never be given, unless the evidence is conclusive in its character, and there .is no fact to be drawn as a matter of inference from the facts proved.—Perkins v. The State, 50 Ala. 158 ; 3 Brick. Dig. p. 110, § 56.

We find no error in the rulings of the court below, audits judgment and sentence are affirmed.

Affirmed.