Opinion
7 Div. 424.
June 30, 1928. Rehearing Denied August 7, 1928.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
George Ham was convicted of violating the Prohibition Law, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Ham v. State, 118 So. 242.
Defendant excepted to the following portions of the oral charge:
"The question of how he was caught has nothing to do with this case if you are convinced beyond a reasonable doubt that he had the whisky, that he had it in his hand or possession, or that he sold it or offered to sell it, and if you are convinced beyond a reasonable doubt that these facts are true, then it is your duty to convict him."
"A person may violate the Prohibition Law by actually having whisky in his hand. If he had it in his hand, gentlemen, if he did not have it for inspection or destruction, then that would be against the law. If he had it for his own benefit and did not have it for destruction or inspection, then he would violate the law whether the whisky belonged to him or not."
Merrill Field, of Anniston, for appellant.
The court erred in allowing the jars of whisky to be introduced in evidence and to go to the jury. 22 C. J. 770; 10 R. C. L. 992; Self v. State, 90 Miss. 58, 43 So. 945, 12 L.R.A. (N.S.) 238. Defendant should have been permitted to show who brought the state's witness Kiser (from whom the liquor was obtained) to the courthouse. Hembree v. State, 20 Ala. App. 181, 101 So. 221. Defendant's witness Estes, having testified as to the bad character of state's witness Kiser, was erroneously cross-examined as to having made a complaint to officers that defendant was selling liquor. Baker v. State, 209 Ala. 142, 95 So. 467; Franklin v. State, 18 Ala. App. 374, 92 So. 526; Bigham v. State, 203 Ala. 162, 82 So. 192.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
This prosecution was for the violation of the Prohibition Laws. It was first begun in the county court, and upon the conviction of the defendant in that court he appealed to the circuit court and there tried by a jury upon a complaint filed by the solicitor, which was predicated upon the original affidavit and charged the same offense.
The conflicting evidence in this case presented simply a question of fact for the determination of the jury. None of the exceptions reserved to the rulings of the court upon the admission and rejection of evidence contains merit. It clearly appears that there was no prejudicial error in any of the rulings complained of, and that none of them resulted in injury to the defendant's substantial rights. A discussion of the innumerable exceptions will not be indulged. The questions involve only the simplest propositions of law. The state's evidence tended to show the guilt of the defendant as to the two jars (1 gallon) of whisky sold by defendant to state witness Terry, and for which Terry paid him $6. This evidence was sufficient to support the verdict of the jury and to sustain the judgment of conviction.
The manner or method resorted to by the law enforcement officers in securing the evidence given by them is immaterial, hence the exception to the oral charge on this question cannot be sustained. Banks v. State, 18 Ala. App. 376, 93 So. 293, 24 A.L.R. 1359; and cases cited; Caraway v. State, 18 Ala. App. 547, 93 So. 376.
Nor was there error in the excerpt of the oral charge relative to what constitutes possession of prohibited liquor, to which excerpt the defendant reserved an exception. Ex parte State ex rel. Atty. Gen., 210 Ala. 55, 97 So. 426.
No injury resulted to defendant as a result of the court's instructions in allowing the two jars and their contents, which had been introduced in evidence, to be taken into the jury room by the jury when they retired for deliberation, as it affirmatively appears "that within three minutes after the jury went out, after the instruction of the court, the court ordered the sheriff to go get the whisky and bring it back in the courtroom, which was done."
No reversible error appearing in any of the rulings of the court, and the record proper being without error, the judgment of conviction appealed from will stand affirmed.
Affirmed.