Gibson v. State

BROWN, J.

(dissenting). — The evidence on the part of the state, if believed by'the jury, shows without dispute the sale by *115the defendant to the witness Wingo of one-half pint of whisky. No evidence was offered by the defendant except the testimony of two witnesses as to the bad character of two of the state’s witnesses, and the state offered a witness in rebuttal whose testimony was to the effect that the general character of each of the witnesses testifying in behalf of defendant was bad. The only question, therefore, for the jury was necessarily the credibility of the testimony, and if error was committed in admitting the testimony of the state’s witnesses to the effect that before the alleged sale was made to Wingo a stock of liquor was kept by tne defendant in his place of business of the same brand as the flask of whisky purchased by Wingo, which was before the jury as a part of the evidence in the case, it was without possible injury to the appellant. If the state’s evidence was worthy of belief as to the sale, the defendant was guilty; if it was unworthy of belief as to the sale, it was likewise unworthy of belief as to the fact that the defendant had a stock if liquor in his place of business. Furthermore, the fact that the state offered two or more witnesses who testified positively to the criminal act is no reason for excluding circumstantial evidence tending to corroborate the positive testimony of these witnesses. Otherwise stated, any evidence, whether it be positive or circumstantial, tending to sustain the indictment, on elementaryprinciples, is admissible.

No question of election was involved or could arise under the indictment and undisputed evidence in the case. The indictment, containing only one count, charges a sale contrary to law, and the evidence, if believed, only shows one sale contrary to law; but, as tending to sustain the charge and corroborate the positive testimony, the evidence showing that the defendant had on hand a stock of liquor was relevant to the issue that the defendant sold liquor to Wingo contrary to law, and the fact that it tended to show a keeping for sale in violation of law did not render the evidence inadmissible.—Kirkwood v. State, 3 Ala. App. 19, 57 South. 504; Ray v. State, 126 Ala. 9, 28 South. 634; 12 Cyc. 407. To illustrate: Suppose there was no positive evidence of a sale, but the evidence in this case showed that the witness Wingo was searched before he went into the defendant’s place, and when so searched he had 50 cents in money; that he was seen to go in; and immediately after he came out he had a bottle of whisky and no money — would not evidence tending to show that the defendant had a stock of liquors in his place, of the same brand as *116that found on Wingo’s person when he came out, be relevant to the issue that -the defendant sold Wingo the liquor.—Rash v. State, 13 Ala. App. 262, 69 South. 239. The evidence is admissible because it' tends to show that the defendant made this specific sale, and to corroborate the other testimony, and the fact that the other testimony is positive instead of circumstantial does not render the circumstantial evidence inadmissible because it tends to show that the defendant is guilty of some other offense. As was said by Walker, P. J.: “Evidence which is relevant to the charge under investigation is not rendered inadmissible because it may also tend to prove the defendant guilty of another * * * offense.”—Kirkwood v. State, supra.

The case of Hyde v. State, 13 Ala. App. 189, 63 South. 673, is, in the opinion of the writer, unsound, and the ruling of the trial court was free from reversible error, and the judgment should be affirmed.