93 So. 40 | Ala. Ct. App. | 1922
The defendant was convicted under an indictment the first count of which charged the offense of manufacturing liquor subsequent to January 25, 1919, and the second charged that he did possess a still, apparatus, or appliance subsequent to September 30, 1919, to be used for the purpose of manufacturing prohibited liquors. No demurrers were interposed to the indictment.
The second count was defective, however, in that it covered a period of time — that is, from September 30, 1919, to November 30, 1919, when it was not a violation of law to do the things charged therein.
There was a general verdict of guilty, and, there being a good count, it will be referred to the good count. May v. State,
We cannot say that there was error in overruling the motion to quash the indictment, on the ground that the grand jury did not have any legal evidence before it upon which to find an indictment. The evidence offered in support of the motion would tend to support it, but it nowhere appears that all of the evidence submitted to the grand jury was submitted to the trial court in the hearing on the motion, and, this being so, we cannot declare that the court erred in its ruling.
The refusal to grant the application of the defendant for a continuance was a matter of discretion with the court, and under the facts set out in the record we cannot say that this discretion was abused. Carr's Case,
The motion for a new trial will not be reviewed here, for the reason that it is not set out in the bill of exceptions. Milner Coal R. R. Co. v. Wiggins,
There was no error in permitting the witness Sanders, over the defendant's objection, to answer the question, "Go ahead and tell the jury what you found on the defendant's place." It is true that the testimony tended to show that parties other than the defendant owned the place where the alleged still was located and operated, yet there was testimony that at that time the defendant was living on the place, and, if so, such fact was pertinent to go to the jury.
It was also competent testimony for the witness to state that he found still beer at the alleged place of location and operation of the still, and that beer was used in making whisky.
A witness, having described the location of a still with reference to defendant's house, and the distance therefrom, may properly state "how you would get from defendant's house to this still." The solicitor was evidently proceeding on the idea that "where there's a still there's a way."
During the examination of Leeman Boyd, a witness for the defendant, he was asked on direct examination, "Did you know of Lee and John Carmichael making any liquor there?" "Did you know of Lee and John Carmichael operating a still?" "Did you know of them operating a still on the Webb place?" The objection of the solicitor to these questions was sustained. In the first place, it was not made known to the court that the witness, if permitted to do so, would have answered in the affirmative.
The defendant denied having possession of a still, or being interested in any way in the manufacturer of liquor as charged in the indictment; so in this view it does not appear how this testimony could have been helpful to him. It is true that the witnesses for the state, Lee and John Carmichael, had denied on cross-examination that they had possessed a still, or had anything to do with the manufacture of the liquor charged to the defendant in this prosecution; so, if the purpose of the testimony was to impeach them — if it could have been done thusly — the question should have been directed to the particular still, and time of manufacture, laid in the indictment. The witness was permitted to answer that he knew nothing of Lee and John Carmichael operating a still on the place in question here.
The written charge requested by the defendant was properly refused. The charge is abstract, and it does not state the law.
We find no error in the record, and the judgment appealed from is affirmed.
Affirmed.
