
    Bartlett v. The State.
    
      Violating Prohibition Lmo.
    
    (Decided February 4, 1913.
    60 South. 938.)
    1. Charge of Court; Directing Verdict. — Where there is a conflict in the evidence, a verdict cannot be properly directed in a criminal case.
    2. Appeal and Error; Harmless Error; Instructions. — Where the flue assessed by a jury was many times the actual minimum, if there was error in the charge as to the amount of the minimum fine, it was error without injury.
    
      3. Evidence; Other Offenses. — While as a general rule evidence of other offenses not connected with the crime charged is not admissible in evidence, yet where the defendant claimed that he was being persecuted by the prosecutor who has just previously thereto prosecuted him for vagrancy in that he sold unlawfully intoxicating liquors, it'was competent to show in rebuttal that he pleaded guilty to such prosecution, and paid the fine.
    Appeal from Montgomery City Court.
    Heard, before Hon. Armstead Brown.
    R. L. Bartlett was convicted of vagrancy in unlawfully selling intoxicating liquors, and be appeals.
    Affirmed.
    Mark D. Brainard, for appellant.
    No brief reached the Reporter.
    R. C. Briokell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    It is competent to introduce evidence of the sale of liquor.— Moss v. The State, 58 South. 62. The evidence of conviction of former offense was admissible in rebuttal.— Pugh v. The State, 59 South. 936; Ingram v. The State, 36 Ala. 247.
   THOMAS, J.

The defendant, on appeal to the city court of Montgomery, was there tried and convicted on complaint of the solicitor, based upon a warrant and affidavit charging defendant with vagrancy, in violation of subdivision 4 of section 7843 of the Code, defining as a vagrant “any person * * * who unlawfully sells or barters any spirituous, vinous or malt or other intoxicating liquors.” In support of. this charge the state offered evidence tending to show such unlawful sale; and the affirmative charge requested by defendant was thereofore properly refused.

Though this court is inclined to the view that that portion of the oral charge of the court to which exception was taken, • instructing tbe jury that tbe minimum fine in cases like tbis, if they should find defendant guilty, was $50, was erroneous, yet we do not deem it necessary to decide tbe question, since, if tbe court was in error in tbis particular it was clearly error without injury, because tbe fine assessed by tbe jury on conviction was $300, far in excess of even tbe minimum stated.

Tbe general rule is that proof of other and distinct and separate crimes committed by a defendant is not admissible in support of a prosecution against him for one not in any way connected with them, yet it affirmatively appears from tbe record in tbis case that tbe evidence offered by tbe state to show that the prosecutor in tbe present case previously prosecuted tbe defendant on a similar charge, and that defendant pleaded guilty and paid tbe fine, while inadmissible as a general proposition, was made admissible in tbis case by the act of the. defendant himself, since be testified that tbe prosecutor “bad it in for him,” and bad previously prosecuted him on a similar charge, seeking thereby to convey tbe idea that be (defendant) was innocent then, and is innocent now, and is being persecuted by tbe prosecutor. This evidence of defendant that he bad been before recently prosecuted on a similar charge by the same person was illegal, irrelevant, incompetent, and immaterial testimony; but be drew it out, and cannot complain now that tbe state was permitted to rebut its inferences by showing that tbe prosecutor named was a -deputy sheriff, and that at tbe time be arrested and prosecuted defendant,' as testified to by tbe latter, tbe defendant pleaded guilty and paid tbe fine, thereby contradicting inferentially tbe implication of tbe defendant that tbe prosecutor was acting, either then or now, from evil motives and persecuting an innocent man. Tbe defendant opened tbe door to tbis illegal testimony by offering illegal testimony it was designed to rebut, thereby making it admissible. — Wall v. State, 2 Ala. App. 170, 56 South. 57.

We find no error in the record, and the judgment of the court below' is affirmed.

Affirmed.  