Coleman v. State , 10 Ala. App. 164 ( 1914 )

PELHAM, J.

The defendant was convicted on a charge of selling, offering for sale, keeping for sale, or otherwise disposing of prohibited liquors.

The contention of appellant in brief is that the defendant was entitled to the general charge, and that a careful reading of the case of Coleman v. State, ex rel. Wild, et al., 7 Ala. App. 424, 61 South. 20, will demonstrate the correctness of this position.

In the case cited this court held that the affidavit on which the search warrant issued was insufficient, and that the warrant based on it was therefore void; but it is not made to appear in this case that the defendant’s affidavit making claim to the whisky offered in evidence, and admitted against the objection of the defendant, is the affidavit of the claimant made in the proceedings originating on the affidavit as a basis for a search warrant held to be insufficient by us in Coleman v. State, ex rel., etc., supra. The affidavit of the claimant offered in evidence in the instant case is not set out in the bill of exceptions, or otherwise identified, and for aught appearing to the contrary a perfectly valid affidavit may have been sworn out as the basis of the proceedings in which the identical affidavit of the claimant was made that was offered in evidence on this trial. Besides, the witnesses Owen and Coleman both testified to facts showing that the whisky seized was admitted by the defendant on more than one occasion to be his whisky, and the undisputed evidence showed that it was kept in a place not used as a dwelling, and this made out a prima facie case under the statute.— Acts 1909, p. 64, § 4. Even though it should be conceded that the claim affidavit of the defendant had been made in a proceeding held to be based on the issuance of an insufficient affidavit, and even though it should be further conceded that the affidavit of the claimant had lost its character as a valid sworn instrument, it Avas nevertheless a Avritten statement made by the defendant against interest, and would have been admissible just as any other written statement containing the same matter, as, for example, a letter. — Oakley v. State, 135 Ala. 15, 33 South. 23. The credibility and Ayeight to be given the admission or confession of ownership contained in the paper writing was a matter for the jury, taking into consideration all the circumstances connected with it, in the same way that any other confession that might be admissible in evidence as tending to show the defendant’s guilt of the crime charged is considered. — Goodwill v. Slate, 102 Ala. 87, 15 South. 571.

The rulings of the court on the admission of evidence, to AAdiich objections were made, and exceptions reserved, are clearly free from error, and the special written instructions requested by the defendant and refused by the court are patently bad, and not argued by counsel in brief, and required no discussion at our hands. Reversible error not being shown, the judgment of conviction will be affirmed.

Affirmed.