Carter v. State
3 Ala. App. 112
Ala. Ct. App.
1912
Check Treatment
WALKER, P. J.

The charge in this case was made in the form prescribed for the offense provided for by section 7564 of the Code. —Code, § 7161, form 84. Its sufficiency was not open to question by demurrer or otherwise.—Coleman v. State, 150 Ala. 64, 43 South. 715; Jones v. State, 136 Ala. 118, 34 South. 236; Noles v. State, 24 Ala. 72.

The evidence on the trial was not such as to warrant the giving of the general affirmative charge in favor of the state. Such a charge should not be given, where *114the evidence as a whole does not necessarily show guilt.—King v. State, 151 Ala. 12, 44 South. 200. The testimony of the defendant, examined as a witness in his own behalf, tended to show that he had not treated or offered to treat any disease of any human being in any way whatever, “but that he merely made his medicine or tea from roots and herbs gathered from woods near by, and sold to people who came to his tent for it.” This testimony tended to rebut the incriminating evidence that had been offered by the state, and made the question of guilt vel non one for. the jury. The court was in error in giving the charge referred to.

Reversed and remanded.