Opinion
6 Div. 896.
January 18, 1927.
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Tom Freeman was convicted of unlawfully possessing a still, and he appeals. Affirmed.
A. A. Griffith, of Cullman, for appellant.
The oral charge of the court was erroneous. Code 1923, § 9507; McIntosh v. State, 140 Ala. 137, 37 So. 223. The evidence was not sufficient to warrant a conviction and the affirmative charge as to count 2 should have been given. Hammons v. State, 18 Ala. App. 470, 92 So. 914; Clark v. State, 18 Ala. App. 217, 90 So. 16: Seigler v. State, 19 Ala. App. 135, 95 So. 563; Moon v. State, 19 Ala. App. 176, 95 So. 830.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen., for the State.
The evidence was sufficient to go to the jury, and the general affirmative charge was properly refused. Lakey v. State, 20 Ala. App. 78, 101 So. 537. The general verdict of guilty was referable to the count sustained by the evidence. Watson v. State, 20 Ala. App. 372, 102 So. 492. The oral charge of the court, taken as a whole, correctly states the law as to possession. Code 1923, § 4657. Objection was properly sustained to the question asking what became of the sack and why it was not in court. Woods v. State, 18 Ala. App. 123, 90 So. 52. The question whether defendant's witness did not bring a load of whisky to Cullman on the day about which he testified was relevant, to test witness as to his whereabouts. Baker v. State, 18 Ala. App. 48, 88 So. 370. Besides, there was no motion to exclude the answer, which will be presumed to be satisfactory to defendant. Haney v. State, 20 Ala. App. 236, 101 So. 533.
This court cannot undertake to reconcile the conflicting testimony of witnesses on the trial or to weigh the evidence, except in such cases where the great and overwhelming weight of the evidence convinces the court that the verdict was the result of influences not properly considered. In this case the evidence was in conflict and its truth or falsity was properly left to the jury. The general charge as to the second count was properly refused.
The court, at the request of defendant, gave the general charge as to the first count of the indictment charging manufacture of whisky. The jury returned a general verdict of guilty. This verdict is referable to the good count in the indictment charging the unlawful possession of a still. Watson v. State, 20 Ala. App. 372, 102 So. 492.
In describing the articles found at the still, it was relevant to show that there was an empty meal sack there with the defendant's name written on it. The mash or beer found at the still was made from meal and other ingredients and the presence of an empty meal sack was a circumstance from which the jury might infer that the beer was made from the meal that had been in the sack and in conjunction with evidence of the presence at the still might have been the subject of further inference. The name on the sack was descriptive of the sack and might have become the subject of an explanatory charge from the court, but did not constitute reversible error.
The questions asked the witness Calvert, as to what the other deputy (Williams) had said regarding defendant's being present at the still, all called for hearsay testimony. Objections to these questions were properly sustained.
It was relevant and proper to show that the deputies were at the still on Wednesday before the arrest of defendant on Thursday, and that defendant came to the still on that day, as tending to prove the defendant's knowledge and possession of the still. Watson v. State, supra.
The meal sack found at the still was collateral matter which could be proven without the physical production of the sack. After the witness Williams had testified on cross-examination that he did not know where the sack was, the further questions as to why witness did not bring the sack to court were argumentative. It is not error to sustain objections to such questions.
The court should have sustained the defendant's objection to the question propounded to defendant's witness Ezra Williams: "Isn't that the day you brought a load of whisky down to Cullman?" This question assumed the commission of a crime by the witness, unproven and not involved in this case. But the answer to this question was favorable to defendant and cured any possible injury that might otherwise have resulted in a reversal.
The defendant takes exception to the following excerpt from the court's oral charge:
"If in this case you should be convinced beyond a reasonable doubt that the defendant had in possession a part of a still, * * * a part of an apparatus, commonly or generally used, or suitable to be used, for the purpose of manufacturing prohibited liquors, if he had in possession a part of that, and if you believe beyond a reasonable doubt that he had in possession a part, and if that possession is unexplained to you, then, gentlemen of the jury, you will be authorized from that evidence, if believed by you beyond a reasonable doubt, to find that the defendant had in possession a whole still to be used for the purpose of manufacturing prohibited liquors."
This states the law as declared in the statute (Code 1923, § 4657).
The other excerpts from the charge of the court to which exception was taken, if error, were corrected by the court to meet defendant's objection and exception. When taken and considered as a whole, the oral charge states the law of the case correctly and fairly.
We find no error in the record, and the judgment is affirmed.
Affirmed.