8 Div. 591.
June 14, 1934. Rehearing Denied June 28, 1934.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
If the admission in evidence of the letters was error, it was not reversible. The undisputed admission or confession of defendant to Baylor positively proved his guilt. The letters were merely cumulative. Alabama and Southern Dig. Criminal Law 1169 (2); James v. State, 24 Ala. App. 322, 135 So. 405.
Bradshaw Barnett and C. P. Almon, all of Florence, for respondent.
The letters were hearsay, not sufficient to establish the corpus delicti. That being true, the admission of the defendant, if made, would be illegal evidence and inadmissible. Johnson v. State, 142 Ala. 1, 37 So. 937; McNeel v. State, 25 Ala. App. 36, 140 So. 185.
The writ of certiorari will be awarded.
It is shown that the city of Florence was collecting the gasoline tax imposed by that municipality and paid by the distributors; that certain companies had paid the tax and had not received credit; that witness Baylor wrote letters to these companies, getting appellant to sign said letters, calling for lists of sales and payments made by them to the city under the ordinance; that replies thereto were received, giving lists and payments by said companies to said official (appellant) of the city; that he, witness Baylor, "showed these replies to appellant who admitted * * * that the amounts * * * had been sent by the respective companies to the city; received; and the same appropriated by appellant to his own use."
The corpus delicti is shown, by the recital in the opinion, that the issues raised were properly submitted to the jury before the last ruling was made.
The undisputed admissions or confessions made by defendant to witness Baylor, and shown by the record, proved his guilt.
Admissions of incompetent evidence are harmless, where the fact to which that evidence relates is otherwise established by competent evidence. 9 Alabama and Southern Digest, Criminal Law, 1169(2), citing many authorities; James v. State, 24 Ala. App. 322, 135 So. 405.
The question of testimony of auditors in such examinations was touched upon in Kersh v. State (Ala.App.) 153 So. 284, Id. (Ala. Sup.) 153 So. 287, on authority of Sovereign Camp, W. O. W. v. Hoomes, 219 Ala. 561, 122 So. 686. A companion case is Garner v. State (Ala.App.) 158 So. 543.
The certiorari is awarded, and the writ will issue, if necessary, in the premises.
All the Justices concur.