March 21, 1945. Deputy Sheriff Patterson was first asked how many times during the preceding six months he had "had occasion" to go to defendant's home. Upon objection by defendant's counsel, the question was reframed with the italicized words omitted. The witness answered that he had gone on "an average of once every two weeks." He was then asked who lived in the home, to which he replied that it was the home of defendant and that he saw defendant's brother, Ansel Fisher, only on the first two visits which were made in October, 1943. The witness further testified that on two of *Page 222 these trips, one in October and the other in November, 1943, the defendant had in his possession unstamped whiskey and made sales on both occasions.
It is conceded in the opinion of the Chief Justice that the evidence of the offenses alleged to have been committed in October and November was competent, but it is held that the testimony as to the other visits made by this officer was highly prejudicial and constituted an attack on defendant's reputation.
Defendant testified that both he and his brother resided in this home. The testimony in controversy may have been offered in anticipation of a contention by defendant that he was not the sole occupant of the premises, and to show that the witness from frequent visits was in a position to know who resided there. But assuming that the testimony was irrelevant, I do not think it was prejudicial. The most that defendant could claim is that it tended to show that the officer thought he was unlawfully engaged in handling intoxicating liquors and was making frequent visits to the premises for the purpose of securing evidence thereof. But the testimony as to the visits when the defendant was found violating the law regulating intoxicating liquors, which testimony is conceded to be competent, conveyed the same impression. The reasonable inference to be drawn from the foregoing testimony is that on the other occasions the officer found no whiskey which, instead of being prejudicial, tended to negative the idea of continuity or habit, an essential element to the offense of storing.
I am in full accord with the disposition made of the other questions, but think all exceptions should be overruled and judgment below affirmed.
The majority of the court having concurred in the foregoing, it has become the judgment of the court.
Affirmed. *Page 223
MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES concur.