Costello v. The State

Costello v. The State. Prosecution for ¡Selling ¡¡Spirituous^ Vinous or Malt Liquors. 1. Beilina spirituous, vinous or malt liquors; admissibility of evidence. — On a prosecution for selling spirituous, vinous or malt liquors without a license and contrary to law, where the evidence for the 'State tended to show that the defendant sold a liquor which tasted like beer and made the purchaser drunk and had the same effect as beer, and that the defendant called such liquor “Hop Jack,” upon the examination of a member of the firm who sold liquor to the defendant, and who testified that he was an expert in.liquors and that hop jack did not contain a sufficient quantity of alcohol to intoxicate, but that he had never drunk any hop jack and did not know what effect it would have on him, it is not competent to ask said witness whether “the usual and ordinary use of hop jack as a drink would make one drunk.” 2. Same; same. — In such a case, on the cross-examination of a member of the firm of wholesale dealers who sold the defendant the liquor called hop jack and which was shown to have been sold by the defendant, it is competent for the State to show, on the cross examination of said witness, that his firm had agreed with the defendant to pay all the court costs and attorneys’ fees incurred by him in selling the hop jack and other drinks purchased by the defendant from the witness’ firm; and it is no objection to the introduction of such evidence that said alleged agreement was in writing. 3. Same; same. — In- such a case, where the witness for the State had testified that he had purchased at the defendant’s store on Sunday, the liquor called hop jack, and which had made him drunk, it is competent for the State on the cross-examination of the defendant as a witness, to ask him if he had not kept his store open on the Sunday the witness for the State claimed to have bought the liquor from the defendant; the purpose of such evidence being to corroborate the State’s witness. 4. Same; charge to the jury. — On a prosecution for selling spirituous, vinous or malt liquors contrary to law, where the evi-deuce for the State showed that the defendant sold a liquor called hop jack which tasted like heer and had the same effect as heer and made drunk the State’s witness who drank it, and that it was beer sold under the name of hop jack, a charge is properly refused which assumes that the liquor sold by the defendant to the State’s witness was what was known as hop jack, which did not contain sufficient alcohol to cause intoxication, and then instructed the jury that if the hop jack would not produce intoxication by being used as a beverage they must acquit the defendant. Appeal from the 'County Court of Bibb. Tried, before the Hon. W. L. -Pratt. The prosecution in this -case ivas commenced by an affidavit made before a justice of the peace of Bibb county, charging the -appellant, 'S. Costello, with selling spirituous, vinous or malt liquors or intoxicating beverages without a license and contrary to law. Upon the preliminary hearing the defendant was bound over to the -county court of Bibb county. The facts of the case -as adduced on the hearing, -and the ruling of the trial court upon the evidence, to which exceptions were reserved, are sufficiently shown in the opinion. There were several written charges requested by the defendant, but inasmuch as the counsel for the appellant expressly say in their brief that they do not insist upon the ruling of the court in refusing to give the second, third and sixth charges, as being erroneous, it is unnecessary to set out these charges at length. The firth charge requested by the defendant was as follows: “I charge you the word intoxication used in the law means an abnormal mental or physical condition, due to the influence of alcoholic liquors, a visible excitation of the passions, an impairment of the judgment or a derangement or impairment of the physical functions or energies; and if you believe from the evidence that hop-jack would not produce this condition by using it as a beverage, then you must acquit the defendant.” From a judgment of conviction the defendant appeals. H. C. Mead and S. D. Logan, for appellant, cited Carl v. State, 99 Ala. 93, s. o. 87 Ala. 17; L. & N. B. It. (Jo. v. Orr, 94 Ala. 602; 11 Am.’& Eng. Ency. Law, 535; Tatum v. Mate, 82 Ala. 5; 1 Greenleaf on Evidence (1st ed.j, § 52; Mandat'd L. & A. Ins. (Jo. v. Jones, 94 Ala. 441; Black on Intoxicating Liquors, § 432. Chas. G. Brown, Attorney-General, for the State. [MAJORITY — HARALSON, J.] HARALSON, J. The witness for the State, Jesse Lilze, to wliom the alleged intoxicants were sold, testified that lie was fifteen years old, and had ’been in defendant’s place of business several times; that one Sunday, he went to the storehouse of defendant, and bought some four or five bottles of “stuff” that made him drunk; that he knew the taste of beer, and that the stuff he purchased from defendant and drank, and which made him drunk, tasted like lager beer, had the same effect on him that lager beer had, and that defendant called what lie sold 'to him, “hop-jack.” The defendant examined one Beckhart who testified, that he was of a firm of wholesale dealers in liquors in Bessemer, Alabama, and his firm had sold defendant large quantities of hop-jack; that he was an expert in liquors and that hop-jack did not contain alcohol in sufficient quantities to intoxicate, but did contain two per cent, of alcohol; that he had never drank any hop-jack and did not- know what effect it would have on him. He was asked: “Would the usual and ordinary use of hop-jack as a drink make one drunk?” and an objection to the question by the State was sustained. The witness had just testified that he had never drank hop-jack, and did not know what effect it would have on one who drank it. There was no admission on the part of the State, that it was such liquor defendant had sold said Lilze, nor had there been any proof that it Avas hop-jack that defendant had sold to him. Lilze^ evidence tended to show that it Avas lager beer he had bought and drank and which made him drunk, and defendant called it hop-jack. There was no error in such a state of proof, in not allowing the question to be asked. Nor was there error in allowing the State to show by said witness, Beckhart, that his firm had agreed with defendant to pay all the court costs and attorney’s fees, incurred by him in selling their hop-jack, cider and other drinks purchased by defendant from them, the objection to such evidence being, that it was shown that said agreement was in writing, and the evidence was irrelevant and immaterial. The evidence was relevant to show the interest of the witness in the acquittal of defendant, and also to show that defendant knew that hop-jack was an intoxicant. .If not, why require the parties from whom he bought it, to indemnify him against damages for its sale? If lawful to sell it, it would seem he needed no such indemnity. The said written agreement of witness’ firm with defendant, was merely collateral or incidental to the main issue, and was not necessary to be produced in order to let in parol evidence of its contents.—3 Brick. Dig., 439, § 486; Cobb v. State, 100 Ala. 19. The witness for the State, Jesse Lilze, had testified that he had bought the “'stuff” that, made him drunk at defendant’s store on Sunday. On the cross-examination of the defendant, testifying in his own behalf, the solicitor asked him : “If he did not leave his store door open on the Sunday that the witness, Jesse Lilze, ■claimed to have come there and bought the bottles of what the defendant called hop-jack?” to which question defendant objected, because it called for illegal and irrelevant evidence. The court overruled the objection, and the defendant answered, “that it was on Sunday that he had sold the bottles of hop-jack to the witness.” ’There was no error here. The purpose of the evidence was to corroborate, the State’s witness, Lilze, which it did. The court refused charges numbered 2, 3, 5 and 6, requested by defendant. ITis counsel say in brief, they do not insist on either of them except 'the 5th. That charge was properly refused. It assumed that the liquor sold by defendant to the witness, Lilze, was hop-jack, and the evidence on the part of the State tends to show that it was lager beer. No error appearing, the judgment of the lower court is affirmed.