Opinion
4 Div. 287.
May 17, 1927.
Appeal from Circuit Court, Covington County; R. T. Goodwyn, Special Judge.
Sim Cox was convicted under an indictment charging the manufacture of whisky and possession of a still, and he appeals. Reversed and remanded.
Refused charges 1A, 1B, 12, and 13 were affirmative charges.
Refused charges 6 and 7 sought to charge that the state had failed to prove venue in the case.
The following charges were also refused to defendant:
"(5) The court charges you that, if you believe from the evidence that the offense charged in the indictment was committed more than a quarter of a mile from the county line of Covington county, you should return a verdict of not guilty."
"(8) The court charges you that, if any individual juror is not convinced of defendant's guilt beyond a reasonable doubt, the jury cannot convict."
"(11) Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and, unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, they must find the defendant not guilty."
"(15) The court charges the jury that, before the jury can convict the defendant, every member of the jury must be satisfied beyond a reasonable doubt of the guilt of the defendant."
"(20) The court charges the jury that a probability of the defendant's innocence is a just foundation for a reasonable doubt of his guilt, and is therefore for his acquittal."
"(23) The court charges the jury that the law presumes that the defendant has testified truthfully in this case, and that it is your duty to reconcile his testimony and the testimony of all the other witnesses in the case with the presumption that the defendant is innocent, if you can reasonably do so."
Marcus J. Fletcher, of Andalusia, for appellant.
Charges requested by defendant state correct propositions of law, and their refusal was error. Charge 8: Brown v. State, 118 Ala. 111, 23 So. 81. Charge 11: Burton v. State, 107 Ala. 114, 18 So. 284; Pickens v. State, 115 Ala. 42, 22 So. 551; Spicer v. State, 198 Ala. 18, 73 So. 396. Charge 20: Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28; Hester v. State, 103 Ala. 83, 15 So. 857. Charge 23: Crisp v. State, 21 Ala. App. 449, 109 So. 282. Any interest of a witness which might influence his testimony should be developed before the jury. McAdams v. State, 21 Ala. App. 193, 106 So. 622.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
There was evidence tending to prove the allegations as charged in each count of the indictment. This applies to manufacture of rum, possession of the still, and the venue. The foregoing being true, charges 1A, 1B, 6, 7, 12, and 13 were properly refused.
Refused charge 5 undertakes to fix the venue at a point one-fourth of a mile within Covington county.
Refused charges 8, 15, and 20 are not based upon a consideration of all the evidence.
Refused charge 11 at one time was held to be good, but is now condemned as being a bad charge. McCarty v. State, ante, p. 62, 112 So. 184.
Refused charge 21 is covered by the court's oral charge, and refused charge 23 is an argument.
The fee fixed by section 4659 of the Code of 1923, is a fact as well known to the jury as to a witness testifying. On cross-examination of the sheriff, it would be competent to inquire if he claimed the fee, and also if he knew that such a fee is provided by law. But, where he answers that he does not claim the fee, the action of the court in sustaining an objection to the question, "You know that there is a $50 fee that goes to the party that gets a conviction in this case, don't you?" is without prejudicial error.
More than a year after defendant is charged with having manufactured whisky, the sheriff, who was one of the principal state's witnesses, went with John Matthews to a point on a branch and pointed out to Matthews a place where the sheriff said the still had been located. This was all the information Matthews had as to the location of the still. Matthews was then permitted, over the objection and exception of defendant, to testify that the still was located 40 or 45 yards from the county line. The whole testimony of this witness relating to the location of the still was hearsay and as such should have been excluded. One of the controverted facts in the case was the location of this still, as to which witness must testify to facts within his own knowledge.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.