Stallings v. State, 33 Ala. 425

Stallings v. State

33 Ala. 425 | Ala. | 1859

R. W. WALKER, J.—

No question was made in the court helow, as to whether a licensed retailer or his clerk is liable to a criminal prosecution for selling spirituous liquors to a.man of known intemperate habits. The appellant cannot now raise the question in this court, and it is therefore neither necessary nor proper for us to consider it.

*427[2.] The effect of the charge of the court was to authorize the jury to look to the fact that Grey’s intemperate habits were notorious in the neighborhood in which the defendant lived, as evidence proper to be considered by them, in connection with the other facts referred to, in determining the question whether the defendant knew that Grey was a person of intemperate habits.

Under the authority of the decision made by this court in Price v. Mazange & Co., 31 Ala. 701, we hold that there was no error in this charge. In the case referred to, the ■question of the admissibility of such evidence, for the purpose of bringing home to a party notice of a fact, was ■carefully considered; and we do not doubt the correctness of the result then attained. In the previous case of Stanley & Elliott v. The State, 26 Ala. 26, the familiar distinction between the relevancy and the sufficiency of evidence seems to have been overlooked; and while we concur in the opinion expressed in that case, that the knowledge of an individual as to a particular fact cannot, as matter of law, be inferred from the mere circumstance that it is generally known in his neighborhood, we feel equally as well satisfied, that if a fact is notoriousin a neighborhood, this is a circumstance tending to show notice of the fact to a person residing there; and it is therefore relevant testimony for that purpose. In other words, it is not a legal presumption that every fact which is notorious among a man’s neighbors is known to him; but the existence of the fact being first shown, its notoriety in a particular neighborhood tends to show, and when coupled with other evidence might induce the belief, that a person residing there had knowledge of it. —Price v. Mazange & Co., supra; Cook v. Parham, 24 Ala. 21; Ward v. Herndon, 5 Porter, 382 ; Lawson v. Orear, 7 Ala. 784; Bank v. Parker, 5 Ala. 731; 1 Greenl. Evidence, § 138, note; Brander v. Ferridy, 16 Louisa. 296 ; Bartlett v. Decreet, 4 Gray, 111.

In several cases decided in this court, it is held, that where a witness has been so situated, that if a fact, notorious and ostensible in its character, ever existed, he would probably have known it, his want of knowledge is *428some evidence, though slight, that it did not exist. Thomas v. Degraffenreid, 17 Ala. 602 ; Nelson v. Iverson, 24 Ala. 9; Crow v. Blakey, at this term. It is obvious, that the principle on which these decisions rest is, that if the existence of a fact is shown, and it is also proved that a party was in a situation and had opportunities to know of it, this is evidence tending to prove that he did know of it. The rule is, that evidence having any tendency, however slight, to prove a particular fact, is competent to be submitted to the jury to show that fact.—Eaton v. Welton, 32 N. H. 352.

The judgment of the circuit court is affirmed.