Opinion
6 Div. 545.
October 29, 1929. Rehearing Denied November 19, 1929.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.
Florence Booker was convicted of violating an ordinance of the City of Birmingham, and she appeals. Affirmed.
Certiorari denied by Supreme Court in Booker v. City of Birmingham, 220 Ala. 443, 125 So. 604.
Harrison Kendrick, of Birmingham, for appellant.
The court does not judicially know that all beer contains alcohol. Daugherty v. State, 22 Ala. App. 400, 116 So. 308; Sharp v. State, 22 Ala. App. 562, 118 So. 238; Anderson v. State, 20 Ala. App. 154, 101 So. 162; Chaney v. State, 21 Ala. App. 625, 111 So. 188. The mere finding of liquor on the premises of a person is not sufficient to fasten guilt upon him. Clayton v. State, 22 Ala. App. 276, 114 So. 787; Hayes v. State, 22 Ala. App. 264, 114 So. 674. Confessions obtained through the influence of hope or fear are inadmissible. Redd v. State, 69 Ala. 255; Wharton, Cr. Ev. 677; Ward v. State, 50 Ala. 120; Bob v. State, 32 Ala. 560; Clark's Man. Cr. Law, 2480; Porter v. State, 55 Ala. 95; 1 Greenl. Ev. 221. A trial de novo means a new trial, as if no trial had ever been had, and just as if it had originated in the circuit court. Thompson v. Birmingham, 217 Ala. 491, 117 So. 406; L. N. R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733; Vinyard v. Republic I. S. Co., 205 Ala. 269, 87 So. 552.
W. J. Wynn and Ralph E. Parker, both of Birmingham, for appellee.
Proof that defendant pleaded guilty in recorder's court was admissible. Loman v. State, 19 Ala. App. 611, 99 So. 769; Dawson v. State, 21 Ala. App. 346, 108 So. 261; Campbell v. State, 22 Ala. App. 22, 112 So. 901; Seay v. State, 21 Ala. App. 339, 108 So. 620; Angling v. State, 137 Ala. 17, 34 So. 846; Bibb v. State, 83 Ala. 84, 3 So. 711. Ordinance 617-C of the city of Birmingham includes beer in its definition of prohibited liquor. The courts take judicial notice of that ordinance. Acts 1915, p. 294, § 7. It is not necessary to prove that a prohibited liquor contains alcohol. Grant v. State, ante, 54, 120 So. 465. The confession of defendant and her plea of guilty were shown to be voluntary. State v. Tatum, 162 La. 872, 111 So. 264; Campbell v. State, supra; Seay v. State, supra.
This prosecution originated in the recorder's court, from a judgment of conviction in which defendant appealed to the circuit court. On trial in the circuit court before the court without a jury, defendant was again convicted of the offense of possessing prohibited liquor in violation of a city ordinance.
The undisputed evidence showed that, when defendant was arrested at her home, the officers found 72 bottles of "home brew," and one witness testified that "home brew" is beer. If anything were lacking in the way of definiteness as to the character of the liquid which was the basis of appellant's present sorrow, appellant supplied it in her own evidence, which followed immediately upon the testimonial definition of "home brew," wherein she referred to the liquid repeatedly as "home brew." There is no merit in the suggestion that the proof failed to show a prohibited liquor.
Under the ordinance of the city of Birmingham for the violation of which appellant was prosecuted (following Code 1923, § 4615), beer is a prohibited liquor.
As hereinabove pointed out, the liquid in this case was shown to be beer. It was therefore not essential that it be shown to be alcoholic. Grant v. State, ante, p. 54, 120 So. 465.
The predicate laid by the appellee showed that, when appellant was arraigned before the recorder, no coercion in the way of hopes, threats, or promises was employed. Over objection, appellee was permitted to prove that appellant was asked by the recorder whether she wished to plead guilty or not guilty, and that appellant pleaded guilty. In overruling appellant's objection, the court did not err. This evidence was admissible as being in the nature of a judicial confession. Angling v. State, 137 Ala. 17, 34 So. 846; Loman v. State, 19 Ala. App. 611, 99 So. 769; Dawson v. State, 21 Ala. App. 346, 108 So. 261.
After a careful consideration of all the evidence, we are not persuaded that the trial court erred in overruling appellant's motion for a new trial. Finding no error, the judgment will be affirmed.
Affirmed.