Traylor v. StateTraylor v. State
- Reporters:
- , ,
- Before:
- Brioken
Thе indictment against this appellant, defendant below, contained two counts. Count 1 charged that .he distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or bevеrages, a part of which was alcohol. Count 2 charged in the usual form the unlawful possessiоn of a still to be used for the purpose of manufacturing prohibited liquors or beverages.
When the testimony was all in, the court properly charged out the first count, as there was no еvidence to sustain the charge contained in that count. The case went to the jury under thе second count, and from a judgment of conviction under said count, based upon the verdiсt of the jury, defendant appealed.
The main insistence of error is the insufficiency of thе evidence to support the judgment. This question is raised in three ways: (1) By defendant’s motion to’ exclude the evidence, made at the close of the state’s case; (2) by the refusal of thе affirmative charge requested in writing; and (3) by overruling defendant’s motion for a new trial.
It is also contended that the court committed reversible error in refusing to grant a continuance of this сause under the showing made to the court by the defendant. We cannot so hold under the following au *263 thorities: Gilbert v. State, 2 Ala. App. 95, 57 So. 127; Scott v. State, 3 Ala. App. 150, 57 So. 413; Brown v. City of Tuscaloosa, 12 Ala. App. 609, 67 So. 780; Brand v. State, 13 Ala. App. 394, 69 So. 379; Gilbert v. State, 18 Ala. App. 393, 92 So. 522; Lutz v. V. H. Brokerage Co., 202 Ala. 234, 80 So. 72. These, and many other authorities, hold that the question of continuance rests in the sound discretion of the court, and the rule prevailing for many years in this state was that the trial court’s аction in this regard was not reviewable. The present, and we think better, pule is that the question will bе reviewed by the appellate courts, but no reversal will be had, except’ where a gross abuse of the discretion is shown. Here no such abuse of this discretion appears.
On thе question as to the sufficiency of the evidence to support the verdict and sustain the judgmеnt of conviction we are of the opinion that a jury question was presented, and therеfore the court was without authority to direct a verdict; for the general rule is the affirmative charge should never be given where there is any evidence, though weak and inconclusivе, tending to make a case against the party who asks the charge. In the instant case we are of the opinion that the following facts testified to by state witness Hyde (some of which was denied by defendant) tended to make out a case against defendant on the chargе contained in the second copnt of the indictment. The testimony of Witness Hyde (sheriff) tended to show that he knew the defendant, Henry Traylor; that some time during the preceding month of July he and three other parties located a complete still in the upper end of beat 16 оr 17 in Marshall county; that he arrived at the still about 3 o’clock in the afternoon and watchеd the still until just before sundown, at which time he saw this defendant come to the still alone. He testified in this сonnection:
“He came up the hollow and he had a load of wood. It was just a little bаsin place, and there was some wood stacked over there above the still, and Mr. Traylor came with a load of wood, and placed his wood down on the oth‘er wood, and examined the beer, and stirred up the beer in the barrels, and then went over and looked аt the beer in the box, and then stepped out just above the stiU on a rock and commenсed fanning with his hat. Then I arrested him. There was another pile of wood, just above the still, and he just рlaced this wood down on the other wood that was there. He brought the wood from the edge of the field, a quarter of a mile.”
He also testified:
“Really I don’t know whose field it was. No.body lived close there. The defendant lived some two and one-half miles from the still‘. No one else came therе. He did not have anything else beside the wood.”
This witness also gave other testimony descriptive of the still, which he termed a complete one, and the surrounding condition, which included abоut 500 or 600 gallons of beer.
The defendant corroborated what the sheriff had testified to, exсept he denied that he stirred the beer. He stated he examined the beer and tasted оf it. His contention was that he had found the still the Monday before and had gone back to it on Thursdаy in order to find out who it belonged to. He explained carrying the wood to the still by stating he wanted to find out whose still it was, and that he carried the wood when he went for that purpose “to kеep them from run-1 ning off or from shooting me.” :
As to the insufficiency of the evidence to suppоrt a conviction which appellant so earnestly insists is clearly apparent we think’ the facts as shown by the testimony and the conflicts therein made a jury question. i No error appears upon the record. The judgment will be affirmed.
Affirmed.