6 Div. 666. | Ala. Ct. App. | Jan 19, 1926
From the judgment entry we note that a plea of misnomer was filed by the defendant in this case, to which the state interposed demurrer, and that the demurrer was overruled by the court; whereupon issue was joined upon said plea, and this issue was found in favor of the state by the jury. The record, however, does not contain the plea in question, nor the evidence adduced upon the trial of this issue, nor is there shown any adverse ruling of the court in this connection; therefore this question is not presented for our consideration.
The defendant was convicted by the jury of the charge contained in the second count of the indictment, which was the unlawful possession of a still, etc., to be used for the purpose of manufacturing prohibited liquors or beverages. The state rested its case upon the evidence of J. W. Lambert, who testified that he was the Sheriff of Cullman county.
Several questions are presented upon this appeal, but the principal insistence is that the evidence adduced upon this trial was insufficient to overcome the presumption of innocence which attended the accused, and that defendant was therefore entitled to the general affirmative charge requested in writing.
In an able and comprehensive brief filed in behalf of appellant by his counsel, many cases of this, and other courts, are cited, and copiously quoted.
We have given careful, attentive consideration to all the evidence adduced upon this trial, and are forced to conclude that a jury question was presented. This being true, the trial court was without authority to direct the verdict; hence there was no error in refusing the affirmative charge. We find in the evidence many incriminating facts and circumstances, tending to show the guilt of this defendant; all these coupled with the undisputed *272 fact that this appellant denied his identity when accosted by the sheriff at his home near the still at the time of his arrest, as stated, made a case for the jury. In this connection the record shows the following testimony of Sheriff Lambert:
"I saw the defendant, Alph Gay, that morning in the house just about good daylight. I had a conversation with him. I did not promise him anything or hold out any inducement to him, or threaten him, or offer him any reward, or hope thereof, or any one else in my presence, in order to have him talk. When I knocked at the door, he opened it. I asked him if this was Alph Gay, and he said, 'No;' and I asked him, 'Where is he?' and he said, 'He has just left here.' I said, 'I think you are the man I want.' And Mr. Jackson was standing just behind me, and he said, 'Good morning, Alph.' I just told him to put on his clothes and get ready that I would have to put him under arrest on account of this still. He told me Alph Gay had just gone from there."
It was permissible and proper for the state to prove the size and kind of still he found near the home of this appellant, this was of the res gestæ, and the exceptions reserved to the court's rulings in this connection are clearly without merit. We have examined each of the exceptions taken to the rulings of the court upon the admission of the evidence. They are all so entirely free from error of an injurious nature we shall not discuss them separately.
Refused charges 1, 2, 3, are affirmative charges. From what has been said the defendant was not entitled, under the conflicting evidence in this case, to have the court direct a verdict in his favor. The evidence presented a jury question.
Charge 4 refused to defendant announces a correct statement of law and would be appropriate in argument. It was refused as a charge without error, the court having properly and explicitly stated to the jury the measure of proof involved in this case. As a charge, the statement was otherwise objectionable, in that it authorized and required the jury to ascertain and refer to rules of evidence "in all other criminal cases." The court, as stated, properly instructed the jury as to the rules of evidence under which this case was to be tried.
Refused charge 8 relates to the bias or financial interest of the sheriff who testified as a witness for the state in this case. This charge was not only fairly and substantially covered by the oral charge of the court, but was specifically covered by one of the charges given at request of defendant.
The remaining refused charges relate to "reasonable doubt." In the court's oral charge this subject was ably and fully covered. The court was therefore under no duty to repeat these instructions to the jury. There was no error therefore in the refusal of charges 5, 6, and 7.
We note that the full oral charge of the court, and also each of the given and refused charges, are set out in full in this transcript, not only in the record proper but also in the bill of exceptions. This is not necessary, and to do so entails unnecessary labor and expense. The oral charge of the court, and also the given and refused charges, should be incorporated in the record proper. There is no requirement that they should also appear in the bill of exceptions. Of course, should exceptions be reserved to any portion of the oral charge, it would be essential that these exceptions properly appear in the bill of exceptions.
We have examined this record and find no error. The judgment of the circuit court is therefore affirmed.
Affirmed.