Davis v. State

Nov 21, 1911
Versions:56 So. 844
2 Ala. App. 200
1911 Ala. App. LEXIS 47
de GRAFFENRIED, J.

The appellant was indicted at the spring term, 1911, of the circuit court of Clarke county, for a violation of the prohibition law.

There were two counts to the indictment, and, while each count charges specificially that the offense was committed within the limits of-Clarke county, which was *202unnecessary, they were not defective as counts charging a violation of the general prohibitory laws of the State. The averments referred to were not, under our Code forms of indictment, necessary; but they were harmless. There could not have been a conviction without proof of venue, whether the venue was or was not aveiTed in the indictment.

This court held, in the case of Mosley v. State, 1 C. of App. 108, 56 South. 35, that granting or refusing to grant a motion to quash an indictment rests in the irrevisable discretion of the trial court, and as we are of opinion that the indictment was not subject to the demurrer interposed to it, and as it appears to have been found by a legally constituted grand jury, and to have been duly and regularly returned into court, in open court, properly indorsed by the foreman, and duly filed in open court by the clerk during the term at which it was found, the action of the trial court in striking the demurrer and the motion to quash, if erroneous, constituted no error which was prejudicial to the defendant. Johnson v. State, 134 Ala. 54, 32 South. 724.

The case was tried by a jury. There was evidence in the case tending to support the theory that the appellant was guilty of the offense, and there was evidence tending to support the theory that he was innocent. During the progress of the trial the appellant offered evidence tending to show that the principal witness for the State was a person whose reputation for truth and veracity was bad, and that he was unworthy of credit as a witness in a court of justice. At the conclusion of the evidence the appellant asked the court in writing to give to the. jury the following charge: ‘‘I charge you, gentlemen of the jury, that if a witness’ testimony has been impeached, you may disregard his testimony entirely, unless corroborated by other testimony not impeached.” *203The above charge is substantially a copy of a charge which the Supreme Court of Alabama, in several cases, has held applicable to a state, of facts similar to the facts in the present case. Churchwell v. State, 117 Ala. 124, 23 South. 72; Southern Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 169; Wynne v. State. 155 Ala. 99, 46 South. 459; Seawright v. State, 160 Ala. 33, 49 South. 325. It is therefore evident that, under the decisions of our Supreme Court, the trial court committeed reversible error in refusing to give the above charge to the jury.

The other questions presented by the record may not arise upon the nest trial of this case, and we do not deem it necessary to discuss them.

Reversed and remanded.