Opinion
4 Div. 235.
November 16, 1926.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Frank Mancil was convicted of selling alcoholic liquor, and he appeals. Reversed and remanded.
Ballard Brassell, of Troy, for appellant.
It is permissible for a witness to testify that he thinks he knows the character of another witness. White v. State, 114 Ala. 10, 22 So. 111; Collins v. State, 3 Ala. App. 64, 58 So. 80.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The indictment against this appellant contained five counts, and each count charged the violation of the Prohibition Law. The counts each charged several alternative offenses. The verdict of the jury, however, found the defendant guilty of the specific charge of "selling alcoholic liquor," and this verdict operated as an acquittal of all of the offenses comprehended in the indictment except that for selling alcoholic liquor.
There was some evidence which tended to show that within the time covered by the indictment the defendant sold one-half pint of "rum" to state witness Sam Dorsey, and that Dorsey paid him 75 cents for it. These facts were testified to by Dorsey only, and were strenuously denied by the defendant. This of course made a jury question; therefore the court properly refused the affirmative charge requested by defendant.
That "rum" is an alcoholic liquor needs no discussion. Courts will take judicial knowledge of that fact. "Courts are not supposed to be ignorant of what everybody else is presumed to know, and what is thus known juries are permitted to find without any proof being adduced." 1 Mayfield Dig. p. 311.
After state witness Dorsey had testified against the defendant, under the elementary rules of evidence, the defendant had the right to undertake to impeach him, and to this end introduced his witness, J. H. Lunsford, for that purpose. He was asked by defendant's counsel (referring to state witness Sam Dorsey): "Well; do you know his general character now for truth and veracity?" The witness answered: "Well, yes; I think I know it now." The state objected "to what he thinks," and the court sustained the objection, and the witness was not permitted to testify. Exception was duly reserved, and must be sustained. White v State, 114 Ala. 10, 22 So. 111; Collins v. State, 3 Ala. App. 64, 58 So. 80; Murphy v. State, 14 Ala. App. 78, 85, 71 So. 967; 1 Mayfield Digest, 159. In Collins v. State, supra, it was said:
"It is competent to ask a witness if he thinks he knows the general character of a witness who has been previously examined, and there was no error in overruling the [objections to] questions propounded to the witness[es] Baker and Van Nichols because so framed."
Other questions presented to be appear without merit.
Reversed and remanded.