106 So. 894 | Ala. Ct. App. | 1925
This appeal has been considered by the court en banc. The entire evidence contained in the record, as well as briefs filed in behalf of appellant, have been read in full, and have had the attentive consideration of the court as a whole.
We have reached the conclusion that the court properly refused the general affirmative charge requested by defendant in writing, as we regard the evidence adduced upon this trial as presenting a question for the determination of the jury. Our conclusion in this respect is based upon the undisputed evidence that, in close proximity to appellant's home, and in sight of his residence, there was found by the searching officers a complete still outfit, pits, fire coals, etc., also barrels and a vat containing approximately 200 gallons of beer or mash, and malted corn, that a plain footpath, in which at the time there were fresh, human tracks, led directly from the home of appellant to the still, which the evidence of the state showed to be only 100 yards distant, and that, at the woodpile, near the house of defendant, there was found a new vat, similar in size and construction, to the vat containing the beer and mash at the still. Moreover, there was undisputed evidence that this appellant, some months prior to the raid by the officers, was in possession of the same condenser found upon the still in question and offered in evidence, and that he carried it in his car to Orrville to have it repaired, and, after being repaired, carried it away from the shop in Orrville. His possession of, or other connection with, the still, etc., was denied by defendant. This conflict, together with his explanation of his possession of the condenser, presented, as stated, a jury question.
We are likewise of the opinion that the defendant's motion for a new trial was properly overruled by the court. The evidence adduced upon the motion for new trial was cumulative. Moreover, but slight weight should be accorded the affidavit of Warren Wright, alias Dutt, etc., who admittedly was a fugitive at the time of the making said affidavit, and the court below could have no assurance that, upon another trial, this affiant would be present in court to give testimony; the inference being affirmatively to the contrary.
No ruling of the court to which exception was reserved presents reversible error. The record proper is also without error. Therefore the judgment of the circuit court will stand affirmed.
Affirmed. *217
