White v. City of Anniston

SIMPSON, J. The appellant was convicted, before the recorder of the city of Anniston, of the offense of selling or giving aivay alcoholic or spirituous liquors, appealed to the city court, and was there convicted, from which judgment this appeal is taken. The witness, Eason, on direct examination, testified as follows: “I saw Carl Freeman give the defendant some money, and I saw the defendant reach in his pocket and give Carl Freeman a pint bottle of whisky.” BCe also testified that he and another went immediately into the poolroom and arrested the defendant, and “found two bottles of corn whisky in his pocket, without labels on them, like the one I saw him give Carl Freeman.” On cross examination this witness testified: “I can’t say whether there was whisky in the bottle I saw defendant give Carl Freeman or not, because I never saw the bottle after he gave it to him, and had no means of knowing whether it was whisky or not.” The defendant’s counsel, at the conclusion of this witness’s testimony, moved the court to exclude the statement of said witness that he “saw defendant give Carl Freeman a bottle of whisky,” on the ground that it was mere conclusion of the witness, immaterial, illegal, and incompetent. The court overruled the motion, and this action is made the basis of the first assignment of error. It is true that the witness should not have been allowed to testify to a fact which he said he did not know (Ashford v. Ashford, 136 Ala. 633, 640, 34 South. 10, [664] 96 Am. St. Rep. 82), yet a part of the testimony .souglit to be excluded was competent, to wit, that he saw him hand Freeman a bottle ; and the court cannot be placed in error for refusing to exclude the entire sentence. The court erred in refusing to give charge No. 2, requested by the defendant. — Barron v. City of Anniston,. 157 Ala. 399, 48 South 58. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, O. J., and McClellan and Mayfield, JJ., concur.