Alabama Court of Appeals, 1921

Parris v. State

Alabama Court of Appeals · Decided May 31, 1921 · Merritt

90 So. 808; 18 Ala. App. 240; 1921 Ala. App. LEXIS 194 (Southern Reporter)

Counsel

Burgin Jenkin, of Birmingham, for appellant. The defendant was entitled to the affirmative charge under either count of the indictment, and was certainly entitled to have the other charges given. Acts 1919, p. 16, § 15; Acts 1919, p. 6; 16 Ala. App. 152 , 75 So. 828 ; 142 La. 975 , 77 So. 898 , L.R.A. 1918E, 1; 75 So. 548; 197 Ala. 617 , 73 So. 322 . The court erred in permitting McDuff to testify as to the conversation had with the defendant, 117 Ala. 93 , 23 So. 130 . Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. The conviction under the second count operated as an acquittal as to the first count, and all matters involving that count were harmless and will not be reviewed. 17 Ala. App. 175 , 83 So. 359 ; 17 Ala. App. 550 , 86 So. 143 . Defendant placed the wrong construction on the statutes, and hence the charges were properly refused; besides, they were covered by instructions given. Charge 7 was properly refused, 123 Ala. 50 , 26 So. 524 .

Opinion of the Court

MERRITT, X

The appellant was convicted under count 2 of the indictment, which charges that subsequent to September 30, 1919, he did unlawfully have in his possession a still, apparatus, appliance, or a device, or substitute for a still, to be used for the purpose of manufacturing prohibited liquors. Acts 1919, p. 1086.

Count 1 alleges that the appellant manufactured 'alcoholic, spirituous, or mixed liquors. The conviction, being under count 2, was an acquittal of the charge under count 1; hence the rulings of the court relative to count 1 need not be reviewed here. Rogers v. State, 17 Ala. App. 175, 83 South. 359; Porter v. State, 17 Ala. App. 550, 86 South. 143.

No demurrers were interposed to either count of the indictment, and there was evidence tending to show that the appellant was in possession of a still, or certain parts or appliances thereof to be.used for the purpose of manufacturing prohibited liquors, and this more than 60 days after September 30, 1919.

Written charges 13 and 14 were substantially covered by the court’s oral charge,- and were properly refused.

The witness McDuff was asked the following question over the timely objection of the appellant: “Did you have a conversation with him at the time about the still?” The answer was: “They talked about the still.” From aught that appears, this answer may have been favorable to the appellant, and there is nothing in the record to indicate any injury suffered by the appellant on account of the ruling excepted to.

^Written charge 9 was covered by given written charges 5 and 8 and also the court’s oral charge. Moreover, it is predicated on “a reasonable doubt,” when such reasonable doubt must .grow out of the testimony.

Written charge 7 is condemned in Amos v. State, 123 Ala. 50, 26 South. 524. See, also, Allen v. State, 134 Ala. 159, 32 South. 318.

There is no reversible error in the record, and the judgment appealed from is affirmed.

Affirmed.

Addendum

On Rehearing.

PER CURIAM.

The original opinion in this ease is withdrawn and opinion substituted. The application for rehearing is overruled.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.