Register v. StateRegister v. State
This defendant was tried under an indictment containing five counts. ’The jury returned a verdict of guilty under the third count, ufiiich charged that he did. distill, make, or manufacture an alcoholic liquor or beverage commonly known as *13 moonshine whisky, etc. This verdict operated as an acquittal of the charges contained in the other four counts of the indictment.
On this appeal it is insisted that the court committed error in several of its rulings upon the testimony; also in certain statements made to the jury in the orаl charge.
The exception to the statement made hy the court in the oral charge is without merit. It was not only within the power of the court to propound questions to witnesses, but if justice requirеd, or if it appeared necessary, it was the duty of the court so to do, and such action uрon the part of the court cannot he construed as an aid to the prosecution or as being prejudicial to the substantial rights of the defendant. It appears that the statement by thе court complained of was in response to and in explanation of certain intimatiоns made to the jury hy defendant’s counsel in argument to the jury, and in this there was no error.
As to the charge of distilling, making, or manufacturing the liquor in question, for which the defendant was convicted, there was evidence adduced by the state which tended to show that the defendant was caught in the very act of making rum or moonshine whisky; this he denied most strenuously, and by his own testimony and that of his several witnesses he undertook to prove an alibi. It follows therefore that this conflict in the testimony presented a quеstion for the determination of the jury.
Several rulings of the court upon tne testimony, insisted upon as еrror, need not be considered, as they relate solely to matters contained in counts 1, 2, 4 аnd 5 of the indictment, under all of which the defendant was found not guilty. If any errors were committed in the rulings of the court upon the testimony which related solely to the charges contained in these counts, it could not effect a reversal of the. judgment of conviction under count 3 of the indictment.
However, in the recent case of Griggs v. State (Ala. App.)
State witness Jasper Woodham, without objection, testified that he had a conversation with the defendant, in which defendant told him he would give witness $2 a day to come to court and swear that he (witness) .and defendant were fishing or hunting. And in order to fix the time, the solicitor was permitted, over the objection of the defendant, to ask the witness:
“When? Fishing or hunting when, at the time he is said to have been with the still?”
The defendant objеcted to this question on the ground that it is leading. The court replied: ' '
“He looks like he is a little refractory, and I’ll let him lead .him.”
In- this ruling the court acted within its discretion, and no abuse of such discretion aрpears. Thomas v. State,
“When did he say he wanted you to swear you was with him hunting or fishing?”
This question was not subjeсt to the objection interposed. The witness answered:
“On the night he was supposed to be caught making whisky.”
There was no error in overruling the motion to exclude this answer. It was admissible, as it tended to show that the defendant undertook to fabricate evidence upon which to predicate his defense, and this fact would be admissible for thе purpose of showing a consciousness of guilt. Facts‘showing or tending to show a consciousnеss of guilt are always permissible, though not connected with the res gestse of the offense. Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thеreafter he is charged with or suspected of crime, is admissible as a circumstance agаinst him on his trial. Montgomery v. State,
In explanation of the testimony of witness Jasper Woodham, the dеfendant without objection was allowed to show that the alleged statement or offer madе by him (defendant) to this witness had reference to a civil suit, and not to the case .then on trial. There was no error in sustaining the state’s objection to the question asked defendant on direct examination: “You did have trouble keeping your witnesses here in that civil suit, didn’t you?” In the first place, this called for a self-serving conclusion or declaration upon the part of defendant. But if this was not so, the defendant could suffer no injury in this connection, as he was immediately thereafter permitted to testify without objection:
“This man [Jasper Woodham] is one of the witnesses I had trouble with in keeрing here. He told me if he didn’t get his pay he wasn’t coming up there any more. That’s my recollection of what passed between me; and that’s the case in which I had the trouble with my witnesses.”
We find no errоr of a reversible nature in any of the rulings of the court. The record is also free from error; therefore -the judgment of the circuit court appealed from - is affirmed.
Affirmed.