Opinion
6 Div. 676.
June 30, 1925.
Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.
Appleton Southerland was convicted of possessing a still, and he appeals. Affirmed.
Charge 13, refused to defendant, is as follows:
"(13) I charge you that [if] after you have considered all the evidence in this case you find that any witness in the case has exhibited anger, prejudice against the defendant or exhibited ill will against him, and which anger, prejudice, or ill will on the part of said witness has convinced you that he has testified untruthfully as to any matter in the case willfully, then you are authorized in your discretion to disregard all his testimony, and, if the conviction of the defendant depends upon the testimony of said witness, and you disregard his testimony, you should find the defendant not guilty."
C. L. Mayhall, of Haleyville, for appellant.
The burden is not upon the defendant to show he was not in possession of the still. The oral charge of the court to that effect was error. Hogland v. State, 20 Ala. App. 461, 102 So. 784. Charges requested by defendant stated correct principles and should have been given.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Testimony as to finding of sugar in defendant's possession was admissible as part of the res gestæ. Allen v. State, 18 Ala. App. 346, 92 So. 18, Evidence as to the suitability of the parts found for use as a still was properly admitted. Wilson v. State, 211 Ala. 574, 100 So. 917. Charge 13 was properly refused. McKenzie v. State, 19 Ala. App. 319, 97 So. 155.
It could serve no good purpose to set out the entire evidence in this case. Suffice it to say the evidence for the state was sufficient upon which to base a legal verdict, and that for the defendant was a denial of the testimony of the state's witnesses as to the material facts. That being the case, the affirmative charge was properly refused.
The court properly admitted testimony tending to prove that defendant had in his possession, at the time the still parts were found on his premises, an unusual amount of sugar, the same being a part of the res gestæ, Allen v. State, 18 Ala. App. 346, 92 So. 18.
It was competent for the sheriff, after qualifying, to testify that the articles found were suitable to be used in the manufacture of whisky. Wilson v. State, 211 Ala. 574, 100 So. 917.
Refused charge 13 was properly refused for at least two reasons: (1) It is the willfully false testimony to a material fact which impeaches the testimony of a witness; (2) the charge is abstract, in that there was evidence by other witnesses establishing the guilt of defendant.
Refused charge 15 was covered in given written charges and in the oral charge of the court.
Refused charge 17 is covered in the court's oral charge.
The exceptions to the court's oral charge are not sufficiently definite. Moreover, the excerpt as stated is in accord with the statute. Code 1923, § 4657; Wilson v. State, 20 Ala. App. 62, 100 So. 914.
We find no error in the record, and the judgment is affirmed.
Affirmed.