BALLARD v. STATE, 23 Ala. App. 50 (1929)

BALLARD v. STATE, 23 Ala. App. 50 (1929)
121 So. 502


3 Div. 619.Court of Appeals of Alabama.
January 15, 1929.Rehearing Denied February 12, 1929.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

E. F. Ballard was convicted of vagrancy, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ballard v. State,219 Ala. 222, 121 So. 502.

E. T. Graham and C. H. Roquemore, both of Montgomery, for appellant.

It was error to allow witnesses to be asked if they knew whether defendant had been unlawfully engaged in selling or bartering any spirituous, vinous, or malt or other intoxicating liquors, or whether defendant had been in the business of handling intoxicating liquors. Brown v. State, 4 Ala. App. 122,58 So. 794; Valverdi v. State, 21 Ala. App. 606, 110 So. 594. It was error to refuse to exclude the answers, “He told me that he was; he told me that Nelson caught him;” and “I know him as a bootlegger.” Martin v. State, 16 Ala. App. 406, 78 So. 322; Valverdi v. State, supra. Motion for new trial should have been granted. Reed v. State, 16 Ala. App. 646, 81 So. 138; Wallace v. State, 16 Ala. App. 85, 75 So. 633; McLean v. State, 16 Ala. App. 196,76 So. 480; Authorities, supra.

Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen., for the State.

The burden of proof being on defendant, the testimony objected to was properly admitted. Code 1923, ? 5573; Wallace v. State, 16 Ala. App. 85, 75 So. 633; Brannon v. State,16 Ala. App. 259, 76 So. 991. A conviction was authorized under subdivision 4 of section 5571. Bartlett v. State, 7 Ala. App. 86,60 So. 958.


Appellant was convicted of the offense of being a “vagrant.” There was evidence offered on behalf of the state, tending to show that appellant was a “bootlegger,” or was engaged in the “bootlegging business.” While a person may, no doubt, engage in “bootlegging” other things, the sale of which is prohibited by law, than “prohibited liquors,” as that term has come to be generally understood, yet we entertain no doubt that in this day of progressive prohibition, the court judicially knows, as everybody else knows, that the term “bootlegger” describes, to the common understanding, one engaged in the unlawful sale of “spirituous, vinous, or malt or other intoxicating liquors,” as mentioned in paragraph 4 of section 5571 of the Code of 1923, which section defines the various types of vagrants.

The court has read the evidence in this case, sitting en banc, and we are of the opinion that the same amply supports the verdict of guilt returned. The defensive matters offered on behalf of appellant were fairly submitted to the jury, by the court. See Brannon v. State, 16 Ala. App. 259, 76 So. 991.

There appearing nowhere any prejudicial error, the judgment is affirmed.

Affirmed.Page 51