Summary
In Fetner v. State, 22 Ala. App. 128, 113 So. 467 (1927) and Ball v. State, 51 Ala. App. 270, 284 So.2d 296 (1973), it was held that it was reversible error to refuse such a charge.
Summary of this case from Benford v. StateOpinion
7 Div. 334.
June 21, 1927.
Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.
Shelley Fetner was convicted of manufacturing whisky, and he appeals. Reversed and remanded.
These remarks of the solicitor, made in argument to the jury, were objected to by defendant.
"All defendants have reasonable tales, and they are almost always out hunting."
"Nine times out of ten, they (defendants) come in with reasonable tales."
The following charges were refused to defendant:
8. "I charge you, gentlemen, that the only just foundation for a verdict of guilt in this cause is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment to the exclusion of every other probability of his innocence and every reasonable doubt as to his guilt, and if the testimony in this case has failed to furnish the aforesaid measure of proof, and to impress the minds of the jury with such proof of the defendant's guilt, the jury shall find him not guilty."
10. "The court charges the jury that the burden of proof is upon the state, and it is the duty of the state to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty, before the defendant is required to introduce any evidence in his favor or to explain any circumstances surrounding him, and if there is a reasonable doubt of this defendant's guilt then you must acquit the defendant."
Pruet Glass, of Ashland, for appellant.
Charges 8 and 10 were erroneously refused. Stevens v. State, 6 Ala. App. 6, 60 So. 459; Brown v. State, 118 Ala. 111, 23 So. 81. It was error to allow the state to show defendant had a pistol at the time the still was raided. Seigler v. State, 19 Ala. App. 135, 95 So. 563; Lewis v. State, 14 Ala. App. 74, 71 So. 617; Henson v. State, 114 Ala. 28, 22 So. 127; Hardaman v. State, 16 Ala. App. 408, 78 So. 324. That witness was not allowed to collect the $50 fee was erroneously allowed in evidence. Morgan v. Patrick, 7 Ala. 185. The argument of the solicitor was improper, and should have been excluded. Dollar v. State, 99 Ala. 236, 13 So. 575; Anderson v. State, 104 Ala. 83, 16 So. 108; Campbell v. State, 19 Ala. App. 349, 97 So. 783; Cross v. State, 68 Ala. 484.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant and three others were prosecuted for manufacturing whisky. From the state's evidence these parties were found at a still armed with guns and a pistol and engaged in the manufacture of whisky. It is now insisted that the court erred to a reversal in permitting the state to prove that while engaged in the illicit distilling, defendant was armed with a gun and a pistol. This was a part of the res gestæ and was admissible. Neely v. State, 20 Ala. App. 538, 103 So. 386.
The state was allowed to prove by one of its witnesses, who was a law enforcement officer, that he was not allowed to collect any part of a $50 fee allowed in prohibition cases. This was not error. The law provides for a $50 fee in certain cases, to be paid to the party capturing a still. If the fee goes to a witness, it might bias his testimony. If under the facts it appears that a witness under the law might participate in the fee, he should be allowed to testify that none of the fee would go to him.
The statements of the solicitor to which objections were made and exceptions reserved are not such statements of fact dehors the record as would authorize or warrant a reversal of the judgment. Even if these remarks are not based upon the evidence in the case, they are not of such a nature as that they would tend to arouse prejudice or to cause a verdict to be rendered otherwise than on the facts in the case. The opinion in the Campbell Case, 19 Ala. App. 349, 97 So. 783, states the law correctly, but each case must be determined by its own facts. It can hardly be seriously contended that two casual remarks of a solicitor, such as are disclosed by this record, would probably injuriously affect the defendant in the trial of his case.
Exception was taken to the following excerpt from the court's oral charge:
"The testimony here is applicable to each of these cases, except in one instance there was some evidence as to a statement made by one of the defendants to one of the witnesses, not in the presence or hearing of the other defendant, and that testimony has no application and should not be considered in determining the guilt or innocence of the other defendant."
The specific objection is that —
"The testimony of what one of the defendants did at the still would not be testimony against the other defendant."
The evidence on the part of the state tended to prove a joint offense. That being the case, everything said and done by either of the defendants in the carrying on of the enterprise was admissible in evidence against all parties involved in the conspiracy. Lancaster v. State, 21 Ala. App. 140, 106 So. 609.
Refused charges 8 and 10 should have been given as requested. Code 1923, § 9509; Stevens v. State, 6 Ala. App. 6, 60 So. 459; Brown v. State, 118 Ala. 111, 23 So. 81. On account of the court's refusal to give these charges as requested, the judgment is reversed and the cause is remanded.
Reversed and remanded.