#### Roden *v.*The State.

*Bribery.*

(Decided April 4, 1912.

59 South. 751.)

1. Bribery; *Indictment.*— An indictment for bribery which failed to allege the Christian name of the officer corruptly solicited, and which also failed to allege that his name was to the grand jury unknown, was not demurraole on that ground.

*2482. *Same; Evidence.*— Under a charge of attempting to bribe a town marshal, it was competent for him to testify that he turned the bribe money over to the city attorney for the purpose of showing the connection between his testimony and that of another witness, identifying the money to be subsequently introduced in evidence.

3. *Same.*— On a charge of bribery, an incriminating note, given by the defendant to the officer corruptly solicited, as well as evidence of a second payment of bribe money, was admissible as corroborative of and relative to the main issue, and as indicating an intent to influence the officer corruptly, although tending to show offenses distinct from the offense charged.

4. *Same.*— Where the prosecution was for bribing a town marshal for the purpose of permitting the defendant to violate the prohibition laws, a United States revenue license issued to the defendant as a retailer was admissible for the purpose of showing motive.

5. *Same.*— When properly identified, the money offered as a bribe is admissible in evidence in a prosecution for the bribery.

6. *Trial; Remarks of Court.*— It was not improper for the court, in a bribery case, to suggest to the solicitor that he introduce the sheriff to identify the bribe money and the revenue license issued to the defendant.

7. *Witnesses; Credibility.*— As bearing on his credibility, the fact that a witness had been convicted of an assault with intent to murder was admissible.

8. *Same; Impeachment.*— Where a defendant’s witness testified that he was present, and that no bribe money was paid on that occasion, it was competent to show that such witness was present on an occasion different from that on which the money was alleged to have been paid.

9. *Same; Bias.*— Where a witness for defendant testified as to the character of the marshal, testifying that it was bad, it was competent to show that there was ill feeling between the marshal and such witness.

10. *Appeal and Error; Harmless Error; Evidence.*— If it was error to permit a question as to whether liquor had been found in a cabin belonging to the defendant, it was harmless where the witness answered in the negative.

11. *Evidence; Documents; Preliminary Proof.*— Where the prosecuting witness testified that an incriminating note which was produced had been handed him in person by the defendant, the note became admissible without the signature to it being identified as. that of the defendant.

12. *Trial; Argument of Counsel.*— Where the statement that no. witness had testified that the sheriff had failed to do his duty, was. a legitimate deduction from the evidence, such statement was not improper.

13. *Indictment and Information; Variance.*— Where an indictment for bribery gave the initials of the Christian name of the officer alleged to have been corruptly solicited, there was no material va*249rianee where the proof and instructions identified such officer by his full name, especially where it also described such officer as the marshal of a certain town.

14. *Charge of Court; Ceneral Charge.*— 'Where the evidence is sufficient, if believed, to sustain a conviction, the affirmative charge cannot properly be given for the defendant.

15. *Same; Singling Out Evidence.*— A charge asserting that if the weakness of the state’s testimony was such that, with the conflict therewith, on the part of defendant’s witnesses, the jury have a reasonable doubt of the defendant’s guilt, was properly refused as it did not authorize consideration of the state’s evidence, not conflicting with defendant’s evidence, and based an acquittal on part of the evidence besides assuming the weakness of the state’s evidence.

16: *Same; Prominence to Particular Matters.*— A charge asserting that if the-prosecuting witness had pleaded guilty to murder in the second degree, this was a circumstance to be considered, gave undue prominence to particular facts mentioned, and was properly refused.

17. *Same; Reasonable Doubt.*— A charge asserting that if from the conflict in the evidence, the jury have not an abiding conviction of the defendant’s guilt, they should acquit, was erroneous in basing a reasonable doubt upon a consideration of the conflicting evidence alone.

Appeal from Marshall Circuit Court.

Heard, before Hon. W. W. Haralson.

Pick Koden was convicted of bribery, and he appeals.

Affirmed.

The following charges were refused the defendant:

(11) “The court charges the jury that initials are not names; and if the letters W. B., before the name of Stallings, are not in fact his name, then your verdict should be not guilty.”

(12) Same as 11.

(13) “The court charges the jury that if the name of the marshal was Willie B. Stallings, or Willie Bell Stallings, or Will Stallings, your verdict would be not guilty.”

(14) “The court charges the jury that, because of the variance in the allegation and the proof, they will find the defendant not guilty.”

(16) “The court charges the jury that, if the weakness of the state’s testimony is such that, with the con*250flict therewith on the part of the defendant’s witnesses, they have a reasonable doubt of defendant’s guilt, they should acquit.”

(17) “The court charges the jury that, if the witness Stallings pleaded guilty to murder in the second degree, this is a circumstance to- be considered by the jury in connection with all the other evidence in determining whether the defendant is guilty; and if from such circumstances and all other evidence in the case there is a reasonable probability of defendant’s innocence, your verdict should be for the defendant.”

(18) “The court charges the jury that, if from the conflict in the evidence they have not an abided conviction of the guilt of this defendant, then his guilt has not been proven by that full measure of proof, required by law.”

(19) “The court charges the jury that if they believe the evidence in this case that the witness Stallings has pleaded guilty to a charge of murder in the second degree.”

John A. Lusk & Son, for appellant.

The evidence as to a distinct and separate transaction was not available under either alternative of the indictment. — 52 Ala. 382; 68 Ala. 559; 91 Al.a 87. The license was clearly *irrelevant.*— McCormack *v. The State,*102 Ala. 161. Witnesses cannot be corroborated in this matter, the accused not being present when it is alleged to have oc*curred.*— Rivers *v. The State,*97 Ala. 72. There was no connection between Mrs. Haygood’s fainting and the bribery *charged.'*— McCormack *v. State, supra; Berney v. The State,*69 Ala. 233. The argument of the solicitor was clearly *improper.*— Crawford *v. The State,*112 Ala. 1; *DuBose v. Connor,*1 Ala. App. 456. Charges 14 and 16 were *proper.*— Storey *v. The State,*71 Ala. 329. *251Charge 15 was *proper.*— Leíais *v. The State,*88 Ala. 13; *Walker v. The State,*117 Ala. 45; *McKee v. The State,*82 Ala. 32.

R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

The note alleged to have been written by defendant and handed the witness Stallings contained an incriminating statement by the defendant and was therefore admissible. Evidence of other acts similar to the one charged against the defendant, was *admissible.*— In *gram v. State,*39 Ala. 247, 252 *y Mason v. State,*42 Ala. 532,537; *Peacher v. State,*61 Ala. 22, 25; *Curtis v. State,*78 Ala. 12, 14; *McDonald v. State,*83 Ala. 46, 48; *Stanley v. State,*88 Ala. 154, 157; *Reeves v. State,*95 Ala. 31, 43; *Lang v. State,*97 Ala. 41, 46; *Sellers v. State,*98 Ala. 72, 75; *Howe v. State,*102 Ala. 144, 151. The internal revenue license Avas properly admitted as tending to shoAV the conduct by defendant of an unlawful drinking place, and therefore, of a motive to commit the offense charged in the indictment. The indictment alleging as “W. B. Stallings” the name of the person attempted to be bribed, Avas sufficient. He testified that some people called him “W. *B.”*— Thompson *v. State,*48 Ala. 165; *Lyon v. State,*61 Ala. 224; *Crittendon v. State,*134 Ala. 145, 152; *Lowe v. State,*134 Ala. 154; *Knight v. State,*147 Ala. 104, 108. It Avas not improper to show by the witness Ivey that he had been convicted and adjudged guilty of an assault Avith intent to murder. — Code, Sec. 4009." His conviction of a felony was properly shoAvn as affecting his *credibility.*— Murphy *v. State,*108 Ala. 10; *Wells v. State,*131 Ala. 48; *Deal v. State,*136 Ala. 52; *Gordon v. State,*140 Ala. 29, 38; *Wingate v. State,*1 Ala. App. 40. The argument of the Solicitor Avas one of inference from the evidence and *252was not therefore *improper.*— Childress *v. State,*86 Ala. 77. .

PELHAM, J. —

Pick Roden, who prosecutes this appeal, was tried and convicted in the court below on an indictment charging him with bribery. The facts alleged as the gravamen of the offense are to the effect that the defendant corruptly solicited or attempted to influence a public officer in the discharge of his official duties. It is averred that one W. B. Stallings, who is described as the marshal of the town of Guntersville, Avas promised by the defendant $10 per month, “and all the whisky and beer he could drink,” if he Avould not arrest or interfere Avith the defendant in carrying on an illegal business in selling prohibited liquors.

The demurrers to the indictment are not well taken; nor are they insisted upon by counsel in brief. The indictment properly charges the offense described in section 6411 of the Code of 1907. It is no ground for demurrer to an indictment for bribery that it fails to aver the Christian name of the officer alleged to have been corruptly solicited, or an attempt made to influence him in his official actions, or that it fails to aver that the Christian name of such officer Avas to the grand jury un*known.*— Crittenden *v. State,*134 Ala. 145, 32 South. 273; *Knight v. State,*152 Ala. 56, 44 South. 585. In describing third persons in an indictment, it has been held to be a sufficiently certain designation to use the initials of their Christian *names.*— Thompson *v. State,*48 Ala. 165.

The evidence narrated by the witness Stallings on the trial in behalf of the state tended to show that during the time he Avas marshal of the town of Guntersville he Avent to the defendant’s store on a certain occasion with one Jack Grayson, and that the defendant on this occa*253sion offered to pay him $10 per month, and furnish him all the beer and whisky he could drink, if he would protect the defendant in carrying on his unlawful business of selling prohibited liquors in violation of the prohibition laws, and would not arrest him, etc. The witness testified that the defendant, on this occasion, paid him $5'on this account, which money he carried and turned over to the city attorney the same night it was paid to him, and the next week the defendant paid him an additional sum of $2 on the same account.

The defendant testified, in substance, that on the occasion when Jack Grayson and the officer, Stallings, came to the defendant’s place of business one Jim Ivey and others were present, and that the marshal bought some “beerette” from the defendant, but that he (the defendant) paid no money to the marshal, and that nothing whatever was said or done by him looking to bribing the officer, or offering to influence him in the discharge of his official duties. Jim Ivey testified as a witness for the defendant; and his testimony tended to corroborate the defendant’s statement as to the occasion he and others were present at the defendant’s store when Stallings and Grayson were there also. The witness Stallings testified that the defendant’s witness Ivey was not present at the defendant’s store on the occasion in question when he and Grayson were there, and the money was paid by the defendant. Grayson was not examined as a witness in the trial of the case. A showing for an absent witness as to the general bad character and the bad character for truth and veracity of the witness Stallings was introduced in evidence by the defendant, and the state introduced a number of witnesses, who testified to the defendant’s general bad character, and also that his character for truth and veracity was bad.

*254The court’s action in allowing the witness Stallings to state where he went, and what he did with the $5-after it was paid to him by the defendant, was free from error. It was for the proper purpose of making a connection between the testimony of this witness and the witness Rayburn to identify the money (silver dollars) subsequently introduced in evidence.

The note handed to the witness Stallings by the defendant was properly permitted to be introduced in evidence in connection, with the witness Stallings’ testimony, as, in that connection, the note upon its face contained incriminating matter tending to show defendant’s guilt of the offense charged. The gravamen of the charge is the corrupt solicitation or attempt to influence a public officer, and some latitude must be allowed in the range of the evidence admitted when such a question is involved; and evidence of acts similar to the one relied upon, intimately and directly connected with the particular accusation, is relevant, and forms part of the same transaction, and is material to illustrate the knowledge and intent with which the particular act was committed, and rebut inferences of any honest intent or purpose. The *intent*(to corruptly influence a public officer in his official action) is a material constituent of the crime charged; and the general rule that the prosecution will not be allowed to introduce evidence of other distinct offenses, for the purpose of showing the accused guilty of the offense specifically charged, does not apply, when it is material to the inquiry to show the intent with which the act charged was committed. *— McDonald v. State,*83 Ala. 46, 3 South. 305; *Gassenheimer v. State, 52*Ala. 313; *Ingram v. State,*39 Ala. 247, 84 Am. Dec. 782.

The defendant’s objection to the testimony of the witness Stallings in reference to the |2 paid to him by the *255defendant is not well taken for tlie same reasons discussed and pointed out in considering tbe court’s action in admitting the note. Tbe evidence was corroborative and relevant to tbe main issue involved.

Tbe United States internal revenue license introduced in evidence Avas issued to tbe defendant as a retail liquor dealer, and Avas shoAvn to bave been taken from bis place of business, Avhere be paid tbe money to tbe officer, and covered tbe period in question. Proof tbat tbe accused bad sucb a license possessed some probative force to sboAv that be was engaged in tbe business of illegally selling liquor, and therefore was relevant as tending to show a motive for committing tbe offense charged. Sucb license, when relevant, is admissible in evidence Avithout tbe aid of a statute authorizing it. — 2 Woollen & Thornton’s Law of Intoxicating Liquors, § 972, and authorities there cited in note 32 on page 1729.

Tbe five silver dollars and letter given to tbe witness Stallings by tbe defendant, and introduced in evidence, were properly identified, and their admission Avas free from error.

Tbe suggestion made to tbe state’s counsel by tbe court, “You might introduce tbe sheriff to identify tbe package” (having reference to tbe package containing the five silver dollars and revenue license which tbe sheriff bad brought into court from tbe bank by request of tbe state’s counsel), Avas not improper, and would not constitute reversible error. No objection bad been made by tbe defendant, based on a failure of tbe state to show tbat this money and license Avas tbe same as testified to by tbe state’s Avitness Stallings as having been received from tbe defendant or taken from bis possession, and no prejudice to defendant could bave resulted from tbe remark. Casual remarks made by tbe *256court to counsel in the course of the trial, not addressed to the jury, though within their hearing, not intended as rulings upon questions of law, are not the subject of *review.*— Meinaka *v. State,*55 Ala. 47; *Campbell v. State,*55 Ala. 80; *Schieffelin v. Schieffelin,*127 Ala. 14, 28 South. 687.

It was not improper to show by the Avitness Ivey that he had been convicted of an assault Avith an intent to murder. — Code, § 4009. ITis conviction of a felony affected his credibility as a *Avitness.*— Deal *v. State,*136 Ala. 52, 34 South. 23; *Gordon v. State,*140 Ala. 29, 36 South. 1009; *Wells v. State,*131 Ala. 48, 31 South. 972; *Murphy v. State,*108 Ala. 10, 18 South. 557; *Wingate v. State,*1 Ala. App. 40, 55 South. 953.

Overruling the objection to the question asked the Avitness Ivey, “There was a right smart liquor out at the cabin, Avasn’t there?” if error, was not prejudicial to the defendant, as the evidence elicited could not have been injurious to the defendant; for the Avitness an-SAArered, “There Avas *not.”*— Cooper *v. Slaughter,*174 Ala. 57 South. 477.

The questions asked the witnesses Ivey and Stallings about the occasion Avhen a Mrs. Haygood aatis at the defendant’s place, and Ivey was arrested, were properly allowed to identify the time as being a different occasion from that Avhen Stallings and Grayson Avere there, and the $5 was paid by the defendant to Stallings, as testified by Stallings.

It was proper to show the state of feeling existing between the prosecuting Avitness Stallings and the Avitness Ike Yaughn, Avko had testified, in a showing introduced by the defendant, to the character of Stallings; and the court committed no error in allowing this evidence.

*257The witness Carter was shown to have a sufficient knowledge of the defendant’s handwriting to testify to the resemblance of the signature on the note. It was not necessary to prove the signature to make the note admissible, as the state’s witness had testified that it was handed to him in person by the defendant, and the paper was admissible without reference to its having been signed by the defendant.

The statement of the solicitor in argument, that “not a man has taken the stand and stated that Stallings had failed to do his duty,” did not exceed the limits of legitimate argument; nor was it an unauthorized inference drawn -from the evidence. ' The defense had introduced evidence of the character of the officer, seeking to impeach him, and his official action was an issue in the case and a legitimate subject of discussion. The statement amounted to no more than an inference drawn from the evidence that the character of the officer had not been impeached by the testimony. Every legitimate inference deemed by counsel as arising out of the testimony is a proper subject of criticism and discussion — *Lide v. State,*133 Ala. 43, 63, 31 South. 953; *Cross v. State,*68 Ala. 476; *Mitchell v. State,*114 Ala. 5, 22 South. 71.

The defendant’s motion to exclude the evidence, and the different written charges based on an alleged variance, because the name of the officer alleged in the indictment to have been bribed, or attempted to be bribed, was averred to be “W. B. Stallings,” when the proof showed that his name was “Willie Bell Stallings,” or “Willie B. Stallings,” or “Will Stallings,” were properly refused. The Avitness testified to the names set out as his Christian names, but also testified that some called him “W. B.,” and, although these letters were only initials of the true Christian names, yet the per*258son was sometimes called and known by these letters, and there is no substantial variance. The description of third persons in an indictment by the use of the initials of the Christian names is sufficient. Especially is this true if the identify of the person is established by an additional descriptive averment, as in this case, where the person was described as “the marshal of the toAvn of *Guntersville.”*— Thompson *v. State,*48 Ala. 165; *Franklin v. State,*52 Ala. 414; *Lyon v. State,*61 Ala. 224; *Sewell v. State,*82 Ala. 58, 2 South. 622; *Crittenden v. State,*134 Ala. 152, 32 South. 273; *Knight v. State,*147 Ala. 104, 41 South. 911.

Charges Nos. 11, 12, 13, and 14 go to the insufficiency of the allegations of the indictment in not averring the Christian name of the marshal, Stallings, or are based on a variance because of the indictment containing only an averment by initials of the Christian name, and need not be discussed seriatim, as, from Avhat Ave have said, it Avill be seen that the court’s ruling' in refusing these charges is free from error.

The evidence Avas.in conflict, and there Avas sufficient testimony of the defendant’s guilt of the offense charged, if believed, to authorize a conviction, and the general charge Avas properly refused.

Charge No. 16 is misleading and argumentative. Other evidence of the state, not conflicting Avith the defendant’s evidence, should be considered by the jury in arriving at a verdict. The charge bases an acquittal on a part of the evidence, and invades the province of the jury in assuming as a fact a Aveakness in the testimony of the state.

Charge No. 17 singles out and gives undue prominence to a part of the testimony. The proposition sought to be given in an instruction by this charge (that the fact that the state’s Avitness had been convict-*259eel of murder iu tlie second degree could be looked to as a circumstance in saying what weight the jury would give his evidence) is substantially covered by given charge No. 10.

Charge No. 18 bases a reasonable doubt upon a consideration of the evidence in conflict alone. A reasonable doubt must grow out of a consideration of all the evidence; and charges properly stating the law on this subject were given at the instance of the defendant.

Charge No. 19 is incomplete.

A careful examination of the record fails to show reversible error, and the judgment of the court below will be affirmed.

Affirmed.