Opinion
5 Div. 567.
June 30, 1925. Rehearing Denied November 3, 1925.
Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.
Clarence Gaither was convicted of violating the Prohibition Law, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Ex parte Gaither, 214 Ala. 61, 106 So. 350.
These charges were refused to defendant:
"(4) I charge you, gentlemen of the jury, that you are each entitled to your own conception of what a reasonable doubt is."
"(6) The court charges the jury that before you can convict the defendant the evidence must be so strong that it convinces each juror of the defendant's guilt beyond all reasonable doubt; and if, after a consideration of all of the evidence, a single juror has a reasonable doubt of defendant's guilt, then you cannot find the defendant guilty."
"(8) The court charges the jury that if it believes from all the evidence that any witness has sworn falsely to any material fact, then the jury is authorized to disregard altogether his testimony if it sees fit."
"(10) The court charges the jury that if there is one single fact that is inconsistent with the defendant's guilt then you must find the defendant not guilty.
"(11) Before you can convict the defendant, gentlemen of the jury, the proof should be inconsistent with every other reasonable hypothesis except the guilt of the defendant, and the jury should be so convinced from the evidence. that each of them would be willing to act on such evidence in matters of highest concern and importance to their own interest or they cannot find the defendant guilty."
Joe Brown Duke, of Opelika, for appellant.
The remarks made by the solicitor in argument to the jury were improper and should have been excluded. Anderson v. State, 209 Ala. 36, 95 So. 171. It was improper for the court to comment, as it did, upon a charge given for defendant. Code 1923, § 9508. Charge 4 is correct, and should have been given. Bell v. State, 89 Miss. 810, 42 So. 542, 11 Ann. Cas. 431, 119 Am. St. Rep. 722; Mitchell v. State, 129 Ala. 23, 30 So. 348; Doty v. State, 9 Ala. App. 21, 64 So. 170. Likewise charge 9. Doty v. State, supra. Also charge 10. Thomas v. State, 18 Ala. App. 540, 93 So. 237. And charge 11. Doty v. State, supra.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The transcript of evidence taken on a former trial was properly excluded. Delaney v. State, 204 Ala. 685, 87 So. 183. The remarks of the solicitor were a mere observation, and were not objectionable. Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158. The court has the right to explain a given charge. Moore v. State, 19 Ala. App. 471, 98 So. 136. There was no error in refusal of charges requested by defendant: (4) Jones v. State, 213 Ala. 390, 104 So. 773. (6) Stevenson v. State, 18 Ala. App. 174, 90 So. 140; Jones v. State, supra. (8) Barnett v. State, 16 Ala. App. 539, 79 So. 675. (9) Jones v. State, supra. (10) Edwards v. State, 205 Ala. 160, 87 So. 179. (11) Parris v. State, 18 Ala. App. 240, 90 So. 808.
It is first insisted in brief that the circuit court has no jurisdiction because of a failure to file with the circuit court a transcript of the trial and conviction in the county court in which the prosecution originated. This defect has now been cured by a return to the writ of certiorari heretofore issued from this court.
There was evidence from which the jury could infer that the defendant had in his possession a 10-gallon keg containing whisky, and therefore the general charge was properly refused.
The whisky is alleged to have been in a Ford car in which defendant and another were riding. It was at night, and on the public road between Opelika and Notasulga. The car, when first seen, was coming towards Notasulga. Another car was ahead of the Ford car, and when it was stopped by the officers the Ford car stopped, turned, and fled in the direction of Opelika. At this point a pistol was fired, and after the Ford car had gone some little distance an object about the size of a 10-gallon keg was seen to have been thrown from the Ford to the side of the road. The officers pursued in another Ford, and as they passed the point where they had seen the object thrown from the fleeing Ford they saw a keg lying by the road. They did not then stop, but continued the pursuit until they met a car in which was Judge Leslie and Mr. Drakeford, whom the sheriff told of the keg and told them to get it. The officers then proceeded in pursuit until they had gotten about two miles from the starting point, and then they discovered where a Ford car, with Fisk nonskid tires on the rear wheels, had turned and again gone towards Notasulga. Having already ascertained that the fleeing Ford had tires of the same kind on its rear wheels, the officers returned to Notasulga, where they arrested defendant and his companion. It was shown by Leslie and Drakeford that the keg of whisky was found, and it was identified in such way as would authorize a finding by the jury as to its contents and identity.
There were many objections to the testimony establishing the foregoing facts, some of which were highly technical. All of these facts and everything transpiring from the time the defendant's car first stopped and turned until it had turned again and the defendants had been arrested in Notasulga were parts of the res gestæ, and admissible as a part of a chain of circumstances tending to connect the defendant with the Ford car and the possession of the whisky. Whatever of technical error there may have been in the admission of this evidence was not such as to have prejudiced or affected the substantial rights of defendant so as to warrant a reversal of the case on that account. For instance. whether Drakeford passed the car in which defendant was riding at a point on the road 12 or 14 miles from the point of arrest was perhaps immaterial, but, being admitted, that fact could not possibly have affected the defendant's case one way or the other.
The defendant offered the entire transcript taken in a case between the state and one Ford car, First National Bank of Tallassee, claimant, and stated that this was offered for the purpose of impeaching the witnesses Plant and Thrasher, and that on the former investigation they testified differently as to certain material facts. What those facts were were not pointed out, nor was the offer of the testimony on the former trial limited to statements of the witnesses Plant and Thrasher claimed to be contradictory. If a witness makes a statement on the trial of the case, and has made a contradictory statement on another trial, and proper predicate laid, such testimony on the former trial as tends to contradict the witness may be introduced, but not the entire transcript of all the proceedings of the previous trial, and the court is under no duty to pick out the parts which are relevant and which are not. The entire transcript of the former trial was properly excluded. Patterson v. State, 191 Ala. 16, 67 So. 997, Ann. Cas. 1916C, 968.
The remark of the solicitor in his address to the jury, "They would sell their country — they would sell the Constitution of the United States in order to make a dollar," while perhaps slightly extravagant and more appropriate in other addresses, was not such a remark as will justify a reversal. Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158.
The court properly charged the jury that the venue of crime committed within one-fourth of a mile of the county line, though actually in another county, was properly triable in Macon county. Code 1923, § 4895.
After giving to the jury at the request of the defendant this charge, "I charge you, gentlemen of the jury, that before you can convict the defendant the proof should be inconsistent with every other reasonable hypothesis except the guilt of defendant," the court, by way of explanation, added, "That is another form of stating what a reasonable doubt is." The statement of the judge is a correct statement of the law, and it is his duty to make such explanations as will prevent the average juror from becoming confused in the many and various definitions given for "a reasonable doubt." Moore v. State, 19 Ala. App. 471, 98 So. 136. Refused charges 1 and 2 were affirmative charges, and, as we have seen, were properly refused.
Refused charge 3 is embraced in given charge 2. Besides, this charge is improper. Suttles v. State, 15 Ala. App. 582, 74 So. 400; Butler v. State, 16 Ala. App. 234, 77 So. 72. Refused charge 4 is condemned in Alonzo Jones v. State, 20 Ala. App. 660, 104 So. 771. Refused charge 5 ignores a consideration of the evidence. Moreover this charge is covered in given charge 5.
Refused charge 6 does not predicate a reasonable doubt upon the evidence in the case, as does the charge held to be good in Russell's Case, 201 Ala. 572, 78 So. 916; Diamond v. State, 15 Ala. App. 33, 72 So. 558. Refused charge 7 is covered by given charge 1. Charge 8 is bad in that it does not require the testimony to be willfully false. Barnett v. State, 16 Ala. App. 539, 79 So. 675. Charge 9 is condemned in Jones v. State (Ala.App.) 104 So. 771; Ex parte State ex rel. Atty. Gen. (re Jones) 213 Ala. 390, 104 So. 773.
20 Ala. App. 660.
Charge 10 was properly refused. Watkins v. State, 18 Ala. App. 3, 82 So. 628; Edwards v. State, 205 Ala. 160, 87 So. 179. Charge 11 is bad. Parris v. State, 18 Ala. App. 240, 90 So. 808.
The remainder of the refused charges are either abstract, were covered by the oral charge, or have been condemned.
We find no error in the record, and the Judgment is affirmed.
Affirmed.