Smith v. State

Retailing Liquor Without License. 1. Witnesses; Cross Examination; Scope. — It was beyond the legitimate scope of cross examination and totally lacking in relevancy to ask a witness on cross examination who had testified to a sale of liquor by the defendant, if he himself had not been selling whisky. 2. Same; Credibility; Impeachment. — The motives and credibility of the witness who had testified as to a sale of liquor by the deefndant, cannot be impeached by evidence of his own violation of the criminal law. 3. Charge of Court; Covered, by Those Given. — The trial court will not be put in error for refusing charges substantially covered by written charges given. 4. Same; Applicability to Evidence. — Where the witnesses fixed the sale of the liquor on Memorial Day, but declined to state positively that it was on the 25th day of April, a charge asserting that unless the- jury believe that the defendant sold the whisky on April 25, or thereabouts, he could not be convicted, was properly refused. 5. Same; Reasonable Doubt. — This court has often condemned as bad ekiirges asserting that before the jury can convict, they must be satisfied to a moral certainty not only that the proof is consistent with the defendant’s guilt, but wholly inconsistent with every other rational conclusion, and that unless the jury are so convinced by the evidence of the defendant’s guilt, that they would each venture to act on that decision in matters of the highest concern and importance to themselves, they must find the defendant not guilty.

Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. John Smith was convicted of retailing spirituous, vinous or malt liquors without license and contrary to law, and he appeals. The contents of charges 1, 2, and 4 are sufficiently stated in the opinion of the court. Charges 3, 5, and 6 are as follows: “(3) I charge you, gentlemen of the jury, that unless you believe from all the evidence in this case that defendant sold the witness Kirby whiskey on the 25th day of April, 1908, between 12 and 1 o’clock, or thereabouts, he cannot convict the defendant.” “(5) I charge you, gentlemen of the jury, that the fact that the defendant worked at a still is no reason why you should convict the defendant. Unless you believe from all the evidence in the case that the defendant actually sold whiskey to J. J. Kirby on the 25th day of April, 1908, you should acquit him. “(6) The court charges the jury that, before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with defendant’s guilt, but that it is wholly inconsistent with every other rational conclusion; and, unless the jury is so convinced by the evidence of the defendant’s guilt that they would each venture to act upon that decision in matters of the highest concern or importance to-his own interest, then they must find the defendant not. guilty.” Counsel discuss assignments of error, relative to evidence, but without citation of authority. They insist that charge 1 should have been given. — Joe v. The State, 38 Ala. 422. They also insist that charges 4, 5 and 6 should have been given. — Johnson’s Oase, 102 Ala. 1. Charges 4 and 6 were properly refused. — Rodgers v. The State, 117 Ala. 9. The Attorney General discusses other assignments, but without citation of authority.