Gowen v. State ( 1922 )

The appellant was convicted under an indictment which charged him with the distillation or manufacture of alcoholic, spirituous, or malt liquors subsequent to January 25, 1919. The demurrers set out in the record, the overruling of which, the appellant insists was error, do not appear from the judgment entry to have been passed upon by the court, and, this being so, there is no ruling on them presented for our review.

There was no error in the court refusing to exclude the answer of the witness Weathers to the question, "Was there any sign on the furnace there inside the fireplace where it had been sitting?" for the reason that no objection was interposed to the question. Atlanta St. Andrews Bay Ry. v. Fowler,192 Ala. 373, 68 So. 283.

There was no error in sustaining the solicitor's objection to the question, propounded to the witness Frank Weathers, "That was a pretty small outfit for a still wasn't it?" The smallness or largeness of the still was not a question in issue here, and, if so, this testimony called for a conclusion of the witness.

It was competent for the state to show that about the still place, where the evidence tends to show the defendant made the liquors described in the indictment, there were found barrels containing still slops; these being ingredients used in the making of such liquors as described in the indictment.

The state was allowed to prove over the objection of the defendant that at the time of his arrest he was drinking; that a witness smelled the defendant's breath, and it smelled like corn liquor. The testimony was without conflict that the defendant was arrested about two miles from his home, the place where the manufacture of the liquor is alleged to have taken place, as he was returning from another place some miles distant, where he had been a couple of days. The theory of the state must have been that, at there was some testimony that sprouted corn was found about the still place, that the odor of corn liquor on the defendant's breath implied that he had manufactured and imbibed of the finished product, and of the product he himself had manufactured. But it is a long ways from sprouted corn to finished corn liquor, in these days when the law enforcement officer sleepeth not, and it is a farther ways, and would require a mighty stretch of fancy, to say that because a person has the smell of corn liquor on his breath, and is so fortunate as to have some corn, sprouted or unsprouted, on his premises, this fact is of some evidential value for a jury to weigh against him in determining his guilt vel non for the manufacture of liquor. The smell of corn liquor on a person's breath under the facts as set out in this case should not be submitted to the jury, in determining whether he manufactured liquor, even corn liquor. It might be a dangerous precedent to say that the smell of liquor on one's breath implied the manufacture of such liquor. This was not a "breath of suspicion" against the defendant.

On cross-examination of the defendant the state was permitted to show that the defendant had left the state of Alabama, and had gone to the state of Mississippi, after he had made bond for his appearance under the charge for which he was then being tried. On redirect examination the state offered a witness who testified on his direct examination over the objection of the defendant that he was employed by the bondsmen of the defendant to pursue and catch him in the state of Mississippi. On cross-examination of this witness the defendant offered to show that the witness went to the state of Mississippi with a warrant for his arrest on an entirely different charge, which warrant was shown the defendant at that time. The court refused to permit the witness to be cross-examined as to this fact, and in so ruling committed reversible error. This testimony, if shown, was legal and relevant in refutation of what the witness had sworn in his direct examination, and would have been in explanation of what the witness in fact went to Mississippi for. We find no error in the other rulings of the court on the evidence.

For the errors pointed out the judgment appealed from must be reversed, and the cause remanded.

Reversed and remanded.