157 So. 678 | Ala. Ct. App. | 1934
The indictment against this appellant contained but one count. He was therein charged with the violation of section 4656 of the Code 1923, which makes it unlawful for any person, firm, or corporation in this state to manufacture, sell, give away, or have in possession, any still, apparatus, appliance, or any device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages. The punishment prescribed for the commission of said offense is fixed by section 4658 of the Code 1923, and is imprisonment at hard labor in the penitentiary for not less than one year nor longer than five years, to be fixed within these limits by the court or judge trying the case.
This trial, in the court below, resulted in the conviction of the defendant, as charged in the indictment; whereupon he was so adjudged, and the court sentenced him to serve an indeterminate term of imprisonment within the limits of said statute, supra. From the judgment of conviction, pronounced and entered, he appeals.
Appellant complains of the ruling by the court wherein, over his objection and exception, state witness Frank Hall, without first having been qualified, was permitted to testify that "the beer, found in containers at the still was fermented." It is insisted that the answer of the witness was but his mere conclusion, etc. It is unquestionably the better rule, in instances of this sort, to first qualify the witness as to his knowledge, observation, and experiences, relative to the matter under inquiry, but in this instance error will not be predicated upon the ruling complained of, as it appears the substantial rights of the accused were not impaired. The judgment of conviction here appealed from will be reversed as result of other errors hereinafter discussed.
The errors above indicated consist of several rulings of the court wherein the state was permitted to show by its witnesses that the defendant on different occasions after his arrest undertook to secure a compromise of the case against him by making a certain designated settlement. At no time and in no instance did the accused admit his guilt of the possession of the still; to the contrary, he strenuously denied his ownership or possession of the still, also all knowledge that it was found in crib out in a field belonging to defendant and about two miles distant from the defendant's home. The several rulings of the court in this connection were error, for, as stated in the case of Vowell v. State,
Along this line the following excerpts from the cases cited are in point.
In Martin v. State,
Likewise in the case of Stinson v. State,
Likewise in the case of Graham v. State,
In the case of Bedingfield v. State,
In the case of Gilbert v. State,
The appellant filed a motion for a new trial, which motion was denied by the court, denial of the motion of appellant for a new trial was error, which must work a reversal of this cause. Authorities, supra.
Reversed and remanded.