101 So. 770 | Ala. Ct. App. | 1924
There was a still, several barrels of mash, a small amount of corn whisky found on the premises of defendant about 50 yards from his house and about 20 yards of his barn. There was some other evidence tending to connect the defendant with the possession, which, taken and considered, was sufficient to authorize a conviction. When this is the case this court will not disturb the verdict of the jury.
The indictment was in two counts. The first charged manufacturing, and the second unlawfully possessing a still. The court, at the request of defendant gave the general charge as to the first count. It will therefore be unnecessary to notice rulings of the court solely affecting the first count of the indictment. Brewington v. State,
What the "theory" of the state's witness was as to where the whisky was made could not, under any phase of the testimony, be competent in this case. Witnesses are confined in their testimony to facts. Theories to be formed therefrom rest with the juries, under proper instruction from the court.
Defendant's witness Hood had testified to the general good character of defendant. Defendant's counsel then asked: "Do you know of this negro ever meddling with whisky or manufacturing whisky?" To which the witness answered "No." After the question and answer the state objected to the question, and moved to exclude the answer. This motion was granted and the defendant excepted. This upon the theory that the objection and motion came too late. We have many times held that, where a question was not objected to until after answer was had, the court would not be put in error for refusing to exclude the answer. Morrow v. State,
Charge 1 as requested in writing by defendant may or may not state a correct proposition of law, dependent upon the facts in a particular case. "If the evidence points to the commission of crime by one person, and there be evidence from which the jury may reasonably infer that the one person was other than the defendant, then the refusal of the charge would be error. If the evidence points to the commission of a crime in which others might be equally involved with the defendant, then such charge would be misleading and properly refused. If the evidence points to the defendant and no one *278
else, the charge is abstract." In this case the charge comes under the second rule, is misleading, and properly refused. Tatum v. State, ante, p. 24,
Charge 3 was properly refused. Lee v. State,
Charge 2 is invasive of the province of the jury.
We find no error in the record, and the judgment is affirmed.
Affirmed.
