Mathews v. State , 21 Ala. App. 181 ( 1925 )

Appellant was convicted of the offense of violating the prohibition laws by having certain liquor in his possession. It would be of no value to discuss the evidence. It was largely, if not entirely, of a circumstantial nature. The question of whether or not it was sufficient to support the verdict returned is not presented, inasmuch as no motion to set aside the verdict was made. There was no error in refusing to give the requested general affirmative charge in appellant's favor.

This court, speaking through Associate Judge Samford, has recently said:

"However, we are of the opinion that the court erred in permitting the deputy sheriff to testify as to the smell of the tub. * * * In the instant case the witness did not qualify as a 'smeller,' i.e., he is not shown to have known the smell of beer, or, if beer, what kind of beer. * * * The sense of smell is a perfectly legitimate manner of obtaining information from which to testify, but such testimony must be carefully safeguarded by legal rules." Anderson et al. v. State, 20 Ala. App. 505,103 So. 305.

A number of rulings of the trial court, in this case, were not in accord with the above, and were erroneous, and for these errors the judgment will be reversed and the cause remanded. Other questions presented will perhaps not arise on another trial.

Reversed and remanded.