Kirk v. StateKirk v. State
- Reporters:
- , ,
- Before:
- Walker
The court was not in error in permitting an amendment of the affidavit upon which the defendant was prosecuted. — Wright v. State, 136 Ala. 139, 34 South. 233.
A deputy sheriff, as a witness for the state, testified as to the sheriff and himself going to the defendant’s place of business and finding the defendant behind the cоunter and a crowd of negroes in front of it, the counter having on it several empty beer bottles, a whisky glass about half full of whisky, and bar fixtures, spoons, glasses; and bоttles of beer on ice back of the counter. Over the objection оf the defendant, and in answer to the question, “What did this crowd of negroes do when you and the sheriff went in?” the witness was permitted to state that “they all ran out of the back door except the defendant.” What the crowd did on the occаsion in question was part of an occurrence in which the defendant was a participant. The spontaneous and precipitate flight, on the аppearance of the officers of the law, of those with whom the dеfendant apparently was having dealings, was not without significance as an indiсation that an illicit transaction had been interrupted; and this circumstancе, in its connection with others testified to, properly could be looked to in determining the nature of the einplqyment in which the defendant was engaged. It had some tendency to elucidate the conduct of the defendant himself. The incident testified to was a part of the res gestee, and the evidence оf it was properly admitted. — Wesley v. State, *21952 Ala. 182; Young v. State, 149 Ala. 16, 43 South. 100.
It is enough to say of the action of the court in oyerruling thе defendant’s motion to exclude the statement of the witness McCullough, that “no one else seemed to be in possession except defendant,” that the bill of exceptions does not negative the conclusion that the statеment Avas made in a responsive ansAver to a question to which no objection was made. A party cannot com- . plain of the court’s refusal to exclude evidence Avhich was not objected to Avhen it was offered.
The part of the oral charge to which an exception was reserved еmbodied the statement of the separate proposition that the kеeping of prohibited liquors on premises not used exclusively as a dwelling is made by law prima facie evidence that such liquors are kept for sale, оr Avitk the intent to sell the same, contrary to law. This was but a statement of a rnle of evidence established by statute. — Acts of Ala. Special Session 1909, p. 64, § 4. The statement excepted to was not subject to exception as a whоle.
The written charge refused to the defendant which in effect asserted the absence of evidence to shoAV that Jim Jones and the defendant were partners in business stated no proposition of law, and the court was not undеr a duty to give it. — Anderson v. State, 160 Ala. 79, 49 South. 460; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 South. 109. Besides, if there Avas error in refusing to give that charge, it was error withоut injury, as the propositions of law applicable to the inquiry to which it referred were fully stated in written charges given at the defendant’s request.
In the provisiоn that the offense with which the defendant was charged is “ptinishable by a fine of nоt less than $50 nor more than $500, to which, at the dis*220cretion. of the court or judge trying the case, may be added imprisonment in the‘county jail or confinement at hard lаbor for the county,” etc.— (Acts of Ala-Special Session, 1909, pp. 10, 11, §§ 3, 5), there is nothing to suggest a legislative intention to discriminate between cases tried by a jury and those tried without the intervention of a jury. The authority to impose a punishment in аddition to a fine “at the discretion of the court or judge trying the case” exists whеther the issues of fact are tried in the one way or the other. There is no merit in the suggestion that the court was without authority to impose the hard labor sentеnce as an additional punishment for the offense of which the defendant was convicted.
Affirmed.