Opinion
4 Div. 979.
December 16, 1924. Rehearing Denied January 20, 1925.
Appeal from Circuit Court, Covington County; W.L. Parks, Judge.
Ora H. Allen was convicted of possessing prohibited liquors, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Ex parte Allen, 212 Ala. 654, 103 So. 713.
Marcus J. Fletcher and A. Whaley, both of Andalusia, for appellant.
The issue presented by the plea of misnomer should have been submitted to the jury. Prince v. State, 211 Ala. 468, 101 So. 174. There was error in rulings on the evidence. Kirklin v. State, 168 Ala. 83, 53 So. 253; Twitty v. State, 168 Ala. 59, 53 So. 308; Way v. State, 155 Ala. 52, 46 So. 273; McBryde v. State, 156 Ala. 44, 47 So. 302; Sheppard v. Austin, 159 Ala. 361, 48 So. 696.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Statements made during execution of a search warrant are admissible. Swoope v. State, 19 Ala. App. 254, 96 So. 728; 4 Michie's Ala. Dig. 262. The state of feeling between defendant and Franklin was not relevant. 4 Michie's Ala. Dig. 194.
It appears from the record that there was a plea of misnomer, and from the judgment entry that demurrer was sustained to this plea. The demurrer does not appear, and hence we cannot pass upon the court's ruling. 4 Michie's Dig. p. 539, sub-title "Demurrer to Indictment."
The granting or refusing of a motion for a continuance is within the sound discretion of the trial court, and unless it be made to appear that this discretion has been abused, this court will not review such ruling. Such does not appear to be the case here.
Charges 4 and 8, refused to defendant, are held bad in Edwards v. State, 205 Ala. 160, 87 So. 179.
Charge 5 was covered by given charge 2 and by the court's oral charge.
Charge 9 as it appears in the record is elliptical.
Charges similar to charges 10 and 12 have been held bad in Parris v. State, 18 Ala. App. 240, 90 So. 808; Amos v. State, 123 Ala. 50, 26 So. 524; Allen v. State, 134 Ala. 159, 32 So. 318.
Charges 13, 14, 17, and 18, requesting affirmative instructions, were properly refused; there being evidence authorizing a conviction.
Statements made by defendant's wife in his presence, which were of an incriminatory nature against defendant, called for a denial by him if they were not true, and when not denied are admissible. 4 Michie's Dig. p. 190, § 262. Moreover, these statements were made in the presence of defendant during the execution of a search warrant. Swoope v. State, 19 Ala. App. 254, 96 So. 728.
It was shown by the evidence that at the time the whisky was found, the sheriff labeled each jug or bottle. These labels were identified and were properly admitted along with the whisky.
It does not appear that either Franklin or Hare were witnesses against the defendant, and therefore what the state of feeling was between these parties and defendant does not appear to be relevant.
We have examined the entire record, and from the whole record we are of the opinion that no substantial rights of defendant have been affected by any adverse ruling of the court.
Let the judgment be affirmed.
Affirmed.