Opinion
7 Div. 731.
April 7, 1931.
Appeal from Circuit Court, St. Clair County; Woodson J. Martin, Judge.
Marcus Roberson was convicted of unlawfully possessing a still, and he appeals.
Reversed and remanded.
Frank B. Embry, of Pell City, and R. T. Goodwyn, Jr., of Montgomery, for appellant.
Defendant's requested charge 3 correctly states the law, and its refusal was reversible error. Storey v. State, 71 Ala. 329; Myers v. State, 62 Ala. 599.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Defendant's refused charges were fairly and substantially covered by the court's oral charge. Their refusal was hence not error. Code 1923, § 9509.
Conviction for unlawfully being in possession of still, etc., to be used for the purpose of manufacturing prohibited liquor. The evidence on the part of the state was in conflict with that on the part of the defendant (appellant).
Appellant requested the court to give the following written charge, which was refused: "If there is a conflict in the testimony of the witnesses offered by the State, and those offered by the defendants, the jury must determine which of said witnesses they will believe; and in determining what weight they will attach to the testimony of any particular witness, they may look to the manner of such witness on the stand, and to his interest and feeling (if any) in the case, and as to whether or not he has been contradicted by other witnesses in the cause, or by his own previous statements."
We cannot say that the above-quoted charge was abstract, and, after carefully checking it by them, neither can we say that it was covered by the court's oral charge nor the written charges given.
The case is a simple one, and the learned trial judge, who is usually very careful and accurate in such matters, doubtless refused this charge under the impression that its substance was included in the charges he had already given. But we are of the opinion he was under a misapprehension as to this.
Speaking of an identical written refused charge, requested by the accused, in the case of Storey v. State, 71 Ala. 329, our Supreme Court said: "The refusal of this charge was clearly erroneous," etc.
For the refusal to give the above-quoted written requested charge, the judgment of conviction is reversed, and the cause remanded. Code 1923, § 7318.
Reversed and remanded.