Opinion
7 Div. 734.
March 21, 1944. Rehearing Denied April 4, 1944.
Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.
Leonard Yates was convicted of violating the prohibition law, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Yates v. State, 245 Ala. 490, 17 So.2d 777.
Chas. F. Douglass, of Anniston, for appellant.
There should not be a conviction unless there is evidence sufficient to justify it. For a first offender, especially, the fine should be small and there should not be a sentence. The sentence, if given, should be measured by the character of the man and the nature of the offense.
Wm. N. McQueen, Acting Atty. Gen., and Geo. C. Hawkins, Asst. Atty. Gen., for the State.
The statute making possession of prohibited liquor an offense, applies to Talladega County, which the court judicially knows to be a dry county. Code 1940, Tit. 29, § 98. Where the state proves possession and guilty scienter, it meets the burden of proof. Gibbs v. State, 29 Ala. App. 113, 192 So. 514. The evidence, if believed was sufficient to sustain a conviction. Edwards v. State, 27 Ala. App. 207, 169 So. 22; Kirtland v. State, 27 Ala. App. 376, 172 So. 680; McCaa v. State, 28 Ala. App. 285, 184 So. 287; Green v. State, 30 Ala. App. 94, 2 So.2d 324; Emerson v. State, 30 Ala. App. 89, 1 So.2d 604. The affirmative charge for the State was proper. Holmes v. State, 29 Ala. App. 594, 199 So. 736. The manner of sentencing a person convicted of violating the prohibition law is fixed by the statute, and limits first offenders to six months. Code, Tit. 29, 99; see Johnson v. State, 222 Ala. 90, 130 So. 777; Vinson v. State, 16 Ala. App. 536, 79 So. 316; Mitchell v. State, 22 Ala. App. 300, 115 So. 149. Whether or not this is appellant's first offense does not appear in this record.
The conviction was in a dry county for violation of the prohibition law. Code 1940, Tit. 29, § 98.
Locked in the "turtle back" of his automobile were thirty-six pints of whiskey which the defendant stated "belonged to him" — said "it was his whiskey." He produced the key with which to unlock the compartment. This evidence was without dispute. The defendant elected not to offer any testimony, but rested upon conclusion of the State's case.
Under the prevailing rule, there was no error in giving for the State the general affirmative charge, duly requested in writing. Where the evidence — as here — is clear, positive and without dispute in proof of every element of the offense, the general affirmative charge for the State may properly be given. Holmes v. State, 29 Ala. App. 594, 199 So. 736; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Martin v. State, 3 Ala. App. 90, 58 So. 83; Bowden v. State, 19 Ala. App. 377, 97 So. 467; McCleskey v. State, 28 Ala. App. 97, 179 So. 394. As pointed out in Holmes, above, the courts do view with disfavor the giving of such a charge. See also Ex parte Grimmett, supra. Here, however, we cannot condemn as error the giving thereof.
It is further contended that a reversal is due because of the alleged severity of the punishment imposed. Since the sentence was within the statutory limit, however, it must be here affirmed. It was the prerogative of the trial court to assess such punishment, within limits, as sound discretion should dictate. Sales v. State, Ala.App., 12 So.2d 101, [1] certiorari denied, Id., 244 Ala. 30, 12 So.2d 103; Wood v. State, 28 Ala. App. 464, 465, 187 So. 250, 251. Nothing is shown to indicate an abuse of this discretion.
True, the punishment, in addition to the fine, was twelve months hard labor. Nevertheless, this length of sentence was warranted for a third conviction (Code 1940, Tit. 29, § 99), and on appeal we presume that the trial court in imposing such sentence acted wholly within the law. "Omnia rite acta praesumuntur." Robertson v. State, 29 Ala. App. 399, 401, 197 So. 73, certiorari denied, 240 Ala. 51, 197 So. 75.
No error is shown, so the judgment must be affirmed.
Affirmed.