Opinion
Div. 489.
December 7, 1976.
Appeal from the County Court, DeKalb County, Richard C. Hunt, J.
Scruggs, Rains Wilson, Fort Payne, for appellant.
William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State.
Appellant-defendant was convicted in the county court of DeKalb County of selling or possessing illegal alcoholic beverages in DeKalb County, a dry county, contrary to T. 29, Article 13, § 262, Code of Alabama 1940, Recompiled 1958. The court tried the case without a jury and imposed a fine of $100 plus 30 days in jail. Judgment was entered and this appeal is direct to this court pursuant to law.
It appears in the record that when sentence was imposed the trial judge took into consideration what law enforcement officers had told him about the prevalence of illegal alcoholic beverage traffic in DeKalb County among taxi-cab operators (defendant was a taxi-cab operator for 8 hours) and generally among others. He also took into consideration defendant's reputation, his family dependents and other factors.
Defendant's counsel objected to the sentence because it was influenced by the prevalence of this illegal traffic which was not evidentiary.
We are unwilling to say as to what extent these factors, namely the liquor traffic, influenced the sentence or how much the sentence was softened by the number of family dependents and the other factors.
Sentence was the product of mental process experienced by the trial judge that resulted from some non-evidentiary factors, and we cannot draw a line of demarcation so as to separate them, and say with any degree of certainty which resulted in what.
We certainly do not expect a trial judge to walk around with deaf ears as to what is going on in his community or wear shaded glasses to obscure his vision as to law enforcement. The fact that he got some information from law enforcement officers as to certain phases of law violation does not necessarily exclude other sources. Perhaps such prevalence was a matter of atmospheric circulation. It is present without identification.
We do not think the judgment should be reversed or the cause remanded on such speculative and argumentative contention that the trial court was unreasonably influenced in pronouncing sentence.
The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Retired Circuit Judge, serving as a judge of this Court, under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.
The judgment is hereby
AFFIRMED.
All the Judges concur.