Hogg v. State

Jun 7, 1921

6 Div. 866.

Versions:89 So. 859

18 Ala. App. 179

1921 Ala. App. LEXIS 150

SAMEORD, J.

[1] At the request of the solicitor the court gave in writing this charge:

“I chаrge you that if you believe from the evidence in this case beyond all reasonable doubt that Wilson Hogg did, on the 1st day ■of November, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1920, have or possess spirituous liquors ■ in his room,- then you must conviсt this defendant under the second count of the affidavit.”

This chargе pretermits all consideration of venue, and was error. Bain v. State, 61 Ala. 75; Collier v. State, 69 Ala. 247; Welsh v. State, 97 Ala. 1, 12 South. 275; Alabama S. & W. Co. v. Thompson, 166 Ala. 460, 52 South. 75.

[2, 3] Under our statute the defendant is not authorized by Act 1919, pp. 8, 10, 15, 17, to possess whisky. Those sections of the act referred to only provide for the prescribing and possession of purе grain alcohol, and there is no evidence in this case оf any such liquor being found on defendant’s premises. Section 2 of thе act of the Legislature 1919 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(Acts 1919, p. 6) makes it unlawful to have in possession prohibited liquors. Section 5 et seq. authorizes the use оf pure grain alcohol under certain circumstances аnd through a prescribed method, but not whisky and even when alcohоl is found in possession of a defendant the right to possess it is a defense to be proven by the defendant.

Charge 1 was fully covered by the court’s general charge and by the written charges givеn at the request of defendant.

[4] Charges 2 and 3 are abstract, and were properly refused. There was no evidence to the effect ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the whisky, if found at all, was found at a placе other than in defendant’s ehifferobe.

[5] Evidence obtained thrоugh an unlawful search, may not be admissible over the timely objection of the defendant, but in this case objection was not madе on that ground. Other grounds were stated to the court, which were properly overruled.

[6] It was within the discretion of the court as to whether he. would permit defendant’s counsel to ask questions of a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍witness, when the same ground had already been gone over and the witness had answered the question without evasion.

[7] It was shown thаt the window of defendant’s room, where the whisky was found opened on a roof'to an-adjoining building, and that a number of fruit jars, similar to thе one in which, the whisky was contained found in defendant’s room, some of which had the odor of the same kind of whisky, as in defendant’s room, was found on the roof near defendant’s window. This was in such closе proximity to and connected with defendant’s room as to bе a part of the locus in quo, and was relevant. It became a question of fact for the jury under the evidence to say whether the jars had been put on roof by defendant or under his direсtion.

[8] The court properly instructed the jury as to its duty, in case thеy should find the defendant guilty. The jury has nothing to do with the fixing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the punishment at hard labor, and no instructions as to that part of the punishment réservеd to the court is necessary to be given the jury.

*181 [9, 10] Quotient verdict, when shown by competent evidence, will always be set aside, but jurоrs will not be permitted to impeach their own verdicts, and the affidavits, other than those of the jurors, are not sufficient to estаblish the fact of a quotient verdict in this case.

For the error рointed out, the judgment is ■reversed,'and the cause is remanded.

Reversed and remanded.

<2&wkеy;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes