Johnson v. State

57 So. 499 | Ala. Ct. App. | 1912

PELHAM, J.

The defendant was convicted of a violation of the prohibition law. Section 7352 of the Code of 1907.

The state’s witness was properly allowed to testify to the intoxicating* effect of the liquor purchased.—Marks v. State, 159 Ala. 71, 48 South. 861, 133 Am. St. Rep. 20; Brantley v. State, 91 Ala. 47, 8 South. 816; Carl v. State, 87 Ala. 17, 6 South. 118, 1 L. R. A. 380; Knowles v. State, 80 Ala. 9.

The charges set out in the record as refused are not shown to have been asked in writing or to have been separately asked or refused. The only statement in reference to the charges is as MIoavs: “Here the defendant asked the following charges, which were refused by the court.” Following this statement in the bill of exceptions six charg’es are set out, but are not shown to have been in writing. Charges moved for must- be in writing (Code, § 5364), and unless the record affirmatively shows that the charges asked were in writing, the trial court Avill not be put in error for their refusal.—Henderson v. State, 137 Ala. 83, 34 South. 828; Foxworth v. Brown, 114 Ala. 299, 21 South. 413; Bellinger v. State, 92 Ala. 86, 9 South. 399; Walker v. State, 91 Ala. 76, 9 South. 87; Rickets v. B. S. Ry. Co. 85 Ala. 600, 5 South. 353; Wheless v. Rhodes, 70 Ala. 419; Crosby v. Hutchinson, 53 Ala. 5.

It was not improper for the court to allow the official stenographer at the request of the jury to read over to them the evidence of one of the witnesses as taken by the reporter, to refresh the memory of the jury as to Avhat had been testified to by the witness. The objection and exception to the court’s allowing this to be done is shown by the bill of exceptions as having been taken after the court had permitted it.

The judgment entry shows the defendant Avas sentenced to work out the costs at the rate of 40 cents per day, when the rate should have been 75 cents per day, and the judgment will be here corrected in that respect, and, as so corrected, the case AVill be affirmed.—Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 118; Johnson v. State, 94 Ala. 35, 10 South. 667; Vaughan v. State, 83 Ala. 55, 3 South. 530; Miller v. State, 77 Ala. 41; Bradley v. State, 69 Ala. 318.

Corrected and affirmed.