7 Div. 312.
March 29, 1927.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Fielding Green was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
Merrill, Field Allen, of Anniston, for appellant.
Charging one with possessing prohibited liquors and amending so as to include a sale constitutes a departure. Echols v. State, 16 Ala. App. 138, 75 So. 814; Denham v. State, 17 Ala. App. 402, 86 So. 163; Broglan v. State, 17 Ala. App. 403, 86 So. 164. Defendant was prejudiced by the argument of the solicitor as to his being a negro, and the court should have excluded the argument. Perdue v. State, 17 Ala. App. 500, 86 So. 158; 4 Michie's Ala. Dig. 321; Moulton v. State, 199 Ala. 411, 74 So. 454; Simmons v. State, 14 Ala. App. 103, 71 So. 979. There is no burden on the defendant to create a reasonable doubt in the minds of the jurors; a reasonable doubt of guilt may arise out of the state's evidence. Lumpkin v. State, 19 Ala. App. 272, 97 So. 171; Stewart v. State, 19 Ala. App. 389, 97 So. 684; 4 Michie's Ala. Dig. 328, 367; Ex parte Williams, 213 Ala. 121, 104 So. 282.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
The amendment of the complaint did not amount to a departure. Roberson v. State, 18 Ala. App. 120, 90 So. 39; Denham v. State, 18 Ala. App. 145, 90 So. 129; Code 1923, § 3843. A general verdict will be referred to the good count. Barber v. State, 78 Ala. 19. As to what is proper or improper argument, see Chambers v. State, 17 Ala. App. 178, 84 So. 638; Cross v. State, 68 Ala. 476; Du Bose v. State, 148 Ala. 560, 42 So. 862. The oral charge of the court must be considered as a whole. McNeill v. State, 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17.
The prosecution against this appellant originated in the county court upon an affidavit and warrant which charged the offense of having in his possession spirituous, vinous, and malt liquors. From a judgment of conviction in said county court, for the offense there charged, he appealed to the circuit court, and was there tried by a jury upon a complaint filed by the solicitor of said court. The first complaint filed in the circuit court conformed to the original charge upon which the defendant was tried in the county court, and was sufficient in form and substance. The record discloses, however, that, after the defendant had pleaded to this complaint and the trial entered upon, upon the issue thus joined, the court, over the objection, motion to strike, etc., of the defendant, permitted the solicitor to file a new or amended complaint, in which it was charged that the defendant, in addition to the original accusation of possession, did sell, offer for sale, or keep for sale, spirituous, vinous, or malt liquors. The addition of the alternative averments, each of which charged an offense, was an unauthorized departure from the original complaint, and the several rulings of the court in this connection were error. The amendments to a complaint, as authorized and provided in sections 3834 and 3835 of the Code 1923, do not contemplate a departure from the original charge and amendments may be allowed if a new and different case was not introduced. This identical question has been decided many times by the appellate courts of this state. Tatum v. State, 66 Ala. 465; Echols v. State, 16 Ala. App. 138, 75 So. 814; Ex parte State, 200 Ala. 700, 76 So. 998; Denham v. State, 17 Ala. App. 402, 86 So. 163; Broglan v. State, 17 Ala. App. 403, 86 So. 164; Hall v. State, 17 Ala. App. 404, 86 So. 165; White v. State, 17 Ala. App. 404, 86 So. 165; Moore v. State, 165 Ala. 107, 51 So. 357; Miles v. State, 94 Ala. 108, 11 So. 403; Clonts v. State, 19 Ala. App. 130, 95 So. 562.
There remains two other insistences of error, but, as this case must be reversed (from what has been said), no detailed discussion of these two propositions need be had. We regard several utterances of the solicitor, in his argument to the jury, as laying too much stress upon the fact that the defendant was a nergo. He was entitled to a fair and impartial trial notwithstanding that fact, and appeals to prejudice, or utterances in argument calculated to create prejudice, should not be indulged by counsel. Simmons v. State, 14 Ala. App. 103, 71 So. 979.
We are of the opinion that the exception reserved to the court's oral charge relative to the measure of proof necessary to a conviction is without merit. The court's oral charge, as a whole, properly stated the law.
Reversed and remanded.