*1 appellant further Counsel for con 774), provided petition L.R.A. her was tends that below point, affirmance so framed though as to raise that that was in that counsel asserts held, erroneous later following rulings of Supreme Court, Section the General Code Bir our invalidity 1091 of that its among mingham 1940, providing other could not by corpus raised be habeas parole things Lane, (Ex parte revocation 232, 67 So. during granted convict, city 727). could, “the time Whether or whether it liberty not, petition which have been at could such convict shall is not so framed computed in parole present point, not as to under such shall be allega- as the expiration petition of such tions determining the date of are such peti- contrary being State tioner sentence” is void as is them ap- confined on this peal by the Pardon and policy ground, evidenced State one which we have first considered, ground, Parole law. since that and other, specified none petition in the This contention is likewise without merit as the reason for alleging judg- in that the said ordinance is in full accord petitioner ment under which was held policy with the State enunciated in Sec- was liberty We are not at void. to con- 1940, 37, Tit. Code Alabama question sider a that was not raised provides, among things, other below.” parole required “shall violator carry out the sentence of the recorder or a conclusion All of the above necessitates parole court as had been appellant’s attach that no merit can granted him, notwithstanding his sentence second contention. suspension would have ended but Application overruled. parole.” thereof This code section progenitors its been in our has Alabama, Acts since See Gen. Acts of 1935.
1935, p. 1109.
Clearly it intention of the Legisla- provide
ture to
a different method for
governing
parole of city
convicts from
Futhermore, STATE. in the corpus habeas proceedings below, appellant’s brief Div. 725. original submission this Court, the Appeals Court of of Alabama. question presented sole whether or not a city convict is deemed to have been Jan. 1961.
serving parole. his sentence while on Rehearing Denied Feb. parte Washington,
In Ex the following: we find void,
“If the ordinance are there petitioner which hold
authorities get invalidity, benefits its
could corpus (15
even on habeas Am. Eng.& 7;
Ency. (2nd Ed.) parte Law Ex 169— parte Cowert, 94, So. Ex 92 Ala.
Sikes, So. *2 Decatur, Doss, appellant. for
Breland & Gallion, Atty. Gen., MacDonald Dwight Bradley, Atty. Gen., W. Asst. State. hol'd, wide, gallons'. about 588 would 23, 1959, approximately On he saw January still; gallons of mash beer in the *3 that the beer in the contained alcohol'. go to, near, saw Oden He the still at p. about :20 m. was, time,
Hamner at this located across viewing the stream from the still and was appellant through the glasses. field At about p. rustling 5 :20 a m. he heard in cane the brake and a man see moving could around the still. The man, wearing blue denim trousers, jacket, an “Ike” and a greasy led cap, leather came'across the creek within to yards began ten Hamner and pick up of to wood.
; Judge. CATES, Using picked the wood he had up, he appeal put started a still, piece This an from a fire under the a of guilty a Oden tin over finding verdict Mr. dis- and the furnace walked back through pasture tilling making liquors. alcoholic The the to the barn. The man jury expressly acquitted Oden he saw at count the still was later on identified -to charged appellant. as possession the him the indictment a him still. The trial sentenced Agent Brewer to Hamner called and told eighteen penitentiary. in to months the they him that had arrested appellant, the excerpt who, when Hamner him, we : saw brief next From Oden’s in custody and wore the same clothing that -23, agents, 1959, A. U. January On man the he saw the still had worn. Brewer, Morgan and Troy Hamner Jarvis deputy A sheriff (after related testify- Abercrombie and County Deputies, Wilbur requisite predicate to the of volun- the Wallace, were on property be- Loyd tariness) that after his arrest Oden told about nine o’clock Oden longing to the officers: about mofning eight until o’clock the in night. sugar “I carried down there. caught me you hadn’t this If time they were at The officers testified caught have me just- wouldn’t and I spots farm, defendant’s a various another fellow carried it for because land, during day. tract 495-acre up water he and would have so morning, they o’clock in eleven Around go far to around. You could his going to mail box in a saw defendant light on make this and let pay me me again He was his with wife. seen car off.” around hogs the middle of feeding his them afternoon, working also brief, and on some argues- his- Appellant, in three his house. around verdict pipes water points: (1) (a) co- compromise; (2) that, and (b) erced Attorney General continues The the nar- forms of verdict suggested asmuch as thus; rative judge did not include the trial form then testified there Mr. Hamner that he saw to count was error receiving jury property which expressly about a a still on the located south of Oden’s under count 1 quarter mile house Oden found and not bank a cane thicket on the of a stream. under count (3) and the refusal type, approximately was a tank It four feet written was error. to It would seem that , [1] what is We alleged to considered the constitute court finished the coercion. record charg- counts as On review yoked charging offenses. we cannot an indivisible crime or Thus, treat one can be a two worker, e., abettor, i. an aider jury noon and about instructed ing the. making beverage at 1:30. an without the lunch alcoholic to and return jurors go entry actual needing an evidence show that he has until :15 is silent The record possession apparatus, court or constructive we asked p. m. which find the verdict, error here because of convic- reached There if the had foremafi acquittal “Judge, I count answered, foreman under one which the say have not.” other. regret *4 like they if would court then asked The As to the point, second or set supper and back at come go for 6:30 pertinent forth parts the of the court’s oral evening, to which the foreman in 7:00 the charge respect with to the form of verdict: hopeless.” There replied, “I am it is afraid sorry he judge stated was to hear' upon the “ * * * is, law 'any per the the willing he was not to release because it son, firm corporation or' who shall y
jur that time. instruction on- The distill, within this State make or manu pages some four to deliberate covers trying any alcoholic, spiritous, facture malted, transcript. objection excep No or liquors or mixed or beverages, any part appears within liberal the rule tion' of alcohol, of which is shall guilty State, 19 95 Gidley v. So. 330. felony.’ That is the first charge made there is noth- in this indictment. conclusion Under our the is law It of part improper Alabama, on the gentlemen, we consider you believe if scope prin- the evidence, within the of the beyond a the reasonable of State, in Orr v. led to reversal doubt and to a moral ciple certainty, that the So.2d Ala.App. defendant beer or beer had mash-in'a affirmed. 111 So.2d still Ala. and that it contained alcohol and' you if further believe from the- evidence that the defendant made that compromise verdict claim The of mash, beer or beer his acts in doing so ... follows: is as would come within the statute which all operating; prohibits State was the distilling, the A still or making man that Oden there. But any ufacturing spirituous,’ alcoholic, showed being both around the denied Oden liquors malted beverages,' since or mixed or it, argues owning the choice of part he alcohol,and of which is guilty that he was under finding was fact terms of this are statute violated if none; guilt the verdict of or liquor both counts beverage such or so made or acquittal under count 2 1 and of count manufactured contained alcohol .even have come about it had not would' never liquor such beverage judge’s hurrying jury. for the been process not distilling. made . of First, as the find, force While support in law under in this contention argument foreman of the might carry jury, record jury does here. some not charge “Gentlemen, [******] possessing the second a still. part insta.nt case asked, “Can’t a man make [******] “Now, somebody gentlemen, Second, else’s still?” if after a consid-
whiskey on evidence, exception you was taken eration of all the objection to the b.elieve the time verdict at re- from all of it the State has met the bur- its form of proof upon it and den of cast turn. defendant dicts the indictment and evidence will you indictment, then not should find therefor be held erred. guilty, defendant and in that event the Considering charge, the oral we conclude your
form of verdict would be: the court below covered the elements of the “We, jury, find the defendant and the offenses burden on the State under charged in the indictment. opinions both Accordingly, counts. as to taking the law the (such case “However, if, considering after all Inc., Laboratories, Booth v. & H. S. evidence, not met the the State has Ala.App. 615, 105 879) So.2d not do affect proof you burden of and not satisfied this case. beyond a reasonable doubt the de- charge fendant’s manu- Oden, brief, in his claims that facturing as found Count charge substantially which is the same indictment or the first count of the 8 in Lockett beyond dictment, but has satisfied given. 117 So.2d should have been of the defendant’s reasonable doubt *5 Jones, See Jury Instructions, Alabama § guilt possessing a found Attorney 7101. The correctly says General indictment, 2 then Count of the there was no reversible in re error find the defendant should fusing this because the court’s oral charge, form of and in that event the charge amply problem covered the your verdict would be: proof, burden of pre reasonable doubt and “We, jury, find the defendant sumption of Furthermore, innocence. charged in Count 2 of the in- judge gave number of the written dictment. Oden, which, notably, 42 59 numbers covered sub however, “If, after carefully con- stantially point the same of law. sidering all evidence case, in the the State has not met burden of. carefully We have considered the entire proof satisfy you beyond a reason- required by 1940, record as 15, § doubt able defendant’s and consider below certainty, ato moral then the defend- is due to be acquittal ant would be entitled to an Affirmed. your In hands. this event the form of your verdict would be: On Rehearing
“We,
jury,
find the defendant not
guilty.”
(Italics added.)
Oden, in his brief for rehearing, urges:
upon
“We
not insist
do
the fact that
perhaps encourage
Our cases
written ver-
the verdict as received
the Court
accuracy
dicts for the sake of
and to avoid
writing,
has to be in
nor do we insist..
delays incident
to corrections. Allen v.
upon the
mandatory
fact that it is
391;
State, 52
State,
Ala.
Edwards v.
Judge
the Trial
give
instructions to
160, 87
179. But a
Ala.
So.
court which re-
Jury
possible
as to the
verdicts.
ceives an oral verdict is not in error if the
We have not
original
contended in our
proper.
verdict is otherwise
Un-
State v.
brief nor in this brief
Judge
derwood,
744;
State,
2 Ala.
Pate v.
19 Ala.
anywise
undertaking
error in
App. 548, 98 So. 819.
explain
the elements of the various
Therefore,
permissible
once,
it would seem
offenses.
however,"
*
**
given
deduce that a trial
give
who fails to
instructions are
possible
obey
verbatim
of the various
texts
should
ver-
instructions of the
Judge,’
instructions.” contention, he support cites the
To this Hines v.
following Fleming cases: & Co., Ala.
Louisville & Nashville R. 683; Hampshire Fire Ins. Co. New So. 441; Curtis, Salter
v. 85 So.2d 163; Turner,
v. 130 So.
Hagan v. Laboratories, H. and Booth S. &
Inc., Ala.App. 105 So.2d *6 opinions we
From the last these contrary “A law as
take: by the court in an instruction
contained aside, whether the instruction
bewill set
right wrong.” 7, 270, T. provides, part:
Code § may “The court state to ” * **
law of the case case,
In if we the instant were to concede Murphy, ap- give Jr., Birmingham, the failure to form Matt for of verdict distilling (contra pellant. formam statuti, 29, 103) error, nevertheless,
T. § Walker, the rule Peterson v. appel- Wm. C. for Birmingham, harm can be ascribed to the lee. judge’s formality trial omission of this be- cause his attention was not called to this PRICE, Judge.
n oversight. appeal deny- is an from a This provides § appellant’s discharge corpus a habeas party the submission either proceeding. supply supposed written omis (or general) sions in the oral appears record it peti- From the request court. This in writing is a condi was, May 12, 1959, tioner convicted precedent putting Circuit Court County of Jefferson may error for whatever he leave out of his driving. reckless In addition offense instruction. imposed, he was sentenced to fine City Application perform hard labor for overruled. of Bir-