Opinion
6 Div. 656.
June 30, 1925. Rehearing Denied August 4, 1925.
Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge.
J. W. Porter was convicted of distilling, and he appeals. Affirmed.
In his argument to the jury the solicitor made these remarks:
"The law don't require this jury to believe beyond all doubt that this defendant is guilty. * * * The law only requires that the evidence in this case should convince you beyond all reasonable doubt of his guilt. * * *
"If you won't convict a man for distilling, when three unimpeached witnesses tell you that they saw him distilling, and nobody denied it, except this defendant himself, then I say to you there is no use in trying to convict a man before this jury for committing the offense of illegal distilling of whisky."
Pinkney Scott, of Bessemer, for appellant.
Counsel discuss the questions raised, but without citing authorities.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
There was no error in rulings on evidence. 4 Michie's Ala. Dig. 579. No motion being made to exclude argument of the solicitor, no question is raised. Thomas v. State, 18 Ala. App. 268, 90 So. 878.
The questions raised as to the organization of the grand and petit juries finding the indictment and trying this case have already been adjudicated. Porter v. State, 20 Ala. App. 74, 101 So. 97.
The defendant, on cross-examination of state's witness Ross, sought to ask witness if he inquired of defendant who owned the still, or who operated the still, or whether defendant had any control over the land or not, or whether defendant helped put the still there or not. The witness had already, in response to a question by defendant's attorney testified:
"I did not interrogate Porter there about it. I didn't ask him nothing about it, but just arrested him and brought him in."
This fact in itself would authorize the trial judge in sustaining the state's objection.
It was competent for the witness Harrison to testify that the still was in operation; that there was whisky there at that time; that the whisky was in glass jugs and was warm. This testimony was relevant and material. The other exceptions to testimony are without merit.
There were certain objections to remarks made by the solicitor in his address to the jury. The law as stated by the solicitor as to the burden of proof was correct, and the other remark was by way of exhortation to convict, and was unobjectionable.
The court properly charged the jury that they had nothing to do with the punishment, that their duty ended when they had determined the guilt or innocence of defendant, and that the court had the duty of fixing the punishment.
We find no error in the record, and the judgment is affirmed.
Affirmed.