33 Ala. 425 | Ala. | 1859
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.
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
The judgment of the circuit court is affirmed.