(1) The indictment contains but one count, and charges only a sale of spirituous, vinous, or malt liquors. After the witness for the state had testified at the instance of the state to having purchased a half pint of liquor from defendant within the time covered by the indictment, the state was allowed, over the objection and exception of defendant, to prove by this witness and other witnesses that on an entirely different occasion, and prior to the purchase, they had been in the rear room of defendant’s store, and saw stored in there a large quantity of prohibited liquors. The defendant, as seen, was not charged with keeping such liquors for sale, but only with selling, of which there was direct and positive evidence. Under such circumstances, when the state has introduced evidence of a specific act which in itself constitutes the crime and the defendant’s commission thereof, as pointed out in the following authorities, the evidence tending to show a keeping for sale was inadmissible.— Moore v. State, 10 Ala. App. 179, 64 South. 520; Rash v. State, 13 Ala. App. 262, 69 South. 239; Hill v. City of Prattville, 13 Ala. App. 463, 69 South. 227; Hyde v. State, 13 Ala. 189, 68 South. 673; Spigener v. State, 11 Ala. App. 296, 66 South. 896; Moore v. State, 12 Ala. App. 243, 67 South. 789.
(2) The rule announced in the foregoing paragraph is not new, and has heretofore been several times adopted and followed by this court in cases of this same character, as will be seen from an examination of the authorities cited in support of the holding.
“It is a general rule [as stated by this court in applying the rule to a similar case, Moore v. State, 10 Ala. App. 179, 182, 64 South. 520, 521] that it is not permissible to prove or admit circumstances going to show that the defendant committed another offense, or other offenses, of similar character to that charged, except when necessary to show scienter or intent, establish iden*113tity, complete the res gestee, show motive, or make out a chain of circumstantial evidence of guilt in respect to the act charged. —Mason & Franklin v. State, 42 Ala. 543, and companion case, 42 Ala. 532; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; McDonald v. State, 83 Ala. 46, 3 South. 305.”
If the defendant had been charged with keeping for sale, or if the evidence relied uppn for a conviction of the sale charged had been circumstantial in its nature and not positive, direct testimony of a specific act in itself constituting the crime charged and the defendant’s commission thereof, then the evidence would have been competent, but not under the circumstances shown here.
The record in this case shows that the state’s witness who testified to the sale of the prohibited beverage to him by defendant testified that he went to the defendant’s place of business with money given him for the purpose of buying whisky at the instance and direction of waiting deputy sheriffs, and bought the whisky for the purpose of making a case against the defendant for violating the prohibition laws, and that money had been advanced to him to pay his expenses while attending court as a witness against the defendant. This state’s witness testified that this sale took place on the 21st day of November, 1914, and this witness was then allowed to testify, against duly reserved exceptions and objections interposed by defendant’s counsel, that in the rear room of defendant’s place of business on several occasions, but not definitely stated as later than July in the year before the sale in November, he had seen large quantities of bottles of whisky on the shelves, and several cases of whisky on the floor. The deputy sheriffs who procured the witness to make the purchase for the purpose of making a case against the defendant were then permitted, against the duly interposed objection of defendant’s counsel, to testify that they had seen “three wagon-loads” of whisky in the rear room of defendant’s store about the 1st of July, 1914. Likewise, a party who testified he was with the state’s witness who testified to purchasing the whisky on November 21st, 1914, was permitted, against the defendant’s objection, to testify to having seen large quantities of whisky stored in the back room of the defendant’s store some time prior to the occasion of the sale testified to.
(3) Conceding that there were no diverse tendencies of the evidence of the defendant’s guilt, vel non, of the offense charged *114against him, and that the jury would have accepted as true -the evidence of the state’s witness and found the defendant guilty, yet it is difficult to see how the conclusion can be arrived at that the admission of this illegal evidence, if error, was without injury, when the record further shows that the court charged the jury that it was within their province and discretion to pass upon the defendant’s guilt or innocence under all the evidence, and to place a fine on the defendant of not less than $50 nor more than $500, as a fit and proper punishment under the evidence, and that the jury fixed the fine at $300, and that the court, in addition to this fine and a sentence of 233 days at hard labor for the county in lieu of the payment of costs, imposed by way of additional punishment a sentence to hard labor for the county for 6 months. Can it be said that improperly admitting in evidence all this illegal evidence against the defendant with reference to the large quantities of liquor being in the back room of his store some 4, 5, or 6 months before the sale for which defendant was being prosecuted, and the consideration of this evidence by court and jury as legal evidence against the defendant in fixing his punishment, had no effect upon their minds in fixing the amount of fine and additional punishment shown by this record to have been fixed and imposed, and that the admission of this evidence, if error, was without injury? The question seems to us to answer itself. It is the established rule that when irrelevant or improper testimony is admitted on a criminal trial, against the objection of the defendant, it will work a reversal unless it affirmatively appear that the effect was to the benefit of, or not injurious to, the defendant (Cauley v. State, 92 Ala. 73, 9 South. 456; Maxwell v. State, 89 Ala. 164, 7 South. 824) or, under the more recent rule of the Supreme Court (rule 45 [175 Ala., 61 South, ix]) after an examination of the entire record, it is the opinion of the court that the improper admission of evidence has not probably injuriously affected the substantial rights of the defendant. We cannot say, after an examination of the entire record, that the error in the admission of the improper evidence, as pointed out, was without injury to the substantial rights of the defendant. .
Reversed and remanded.