Opinion
4 Div. 236.
December 14, 1926. Rehearing Denied January 11, 1927.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Walter Ikener was convicted of unlawfully possessing prohibited liquor, and he appeals. Affirmed, and remanded for proper sentence.
The sentence of the court is as follows:
"It is ordered by the court that the defendant Walter Ikener, be and he is hereby sentenced to 90 days at hard labor for Pike county to pay the fine of $300, and to __________ days to pay the costs at 75 cents per day and to six months at hard labor for Pike county as an additional punishment."
Certiorari denied by Supreme Court, 215 Ala. 652, 112 So. 187.
A. G. Seay, of Troy, for appellant.
It is the duty of the court to confine the evidence to the point in issue; facts not tending to prove or disprove matters in issue are not admissible. Jones v. State, 17 Ala. App. 394, 85 So. 830; Martin v. State, 16 Ala. App. 68, 101 So. 71; Haynes v. State, 20 Ala. App. 160, 101 So. 167; Norwood v. State, 80 App. 406, 78 So. 322; Russell v. State, 20 Ala. Fla. 613, 86 So. 506; Tucker v. State, 21 Ala. App. 26, 104 So. 869. The affirmative charge, requested by defendant, should have been given. Allen v. State, 21 Ala. App. 23, 104 So. 867; Moon v. State, 19 Ala. App. 176, 95 So. 830; Ammons v. State, 20 Ala. App. 283, 101 So. 511.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Two ten-gallon kegs of whisky were found by the officers in a sedge patch 165 yards from defendant's house. This establishes the unlawful possession of the whisky in some person. The question in the case therefore is, Was the possession that of the defendant? To make out its case in this regard, the state was forced to resort to circumstantial evidence. In such case every fact and circumstance tending to connect the defendant with the crime charged is material and relevant. Lancaster v. State (Ala.App.) 106 So. 609. In this case the proof of a tin tub that had had beer in it found at defendant's house at the time of the search of defendant's premises, as an isolated fact, would not be relevant, so also would be other facts in the chain of circumstances, but when there is shown a chain of facts leading from this same tub to a still recently operated and tracks from the still to where the whisky was found and from there back to defendant's yard, at or near the place where the tub was found, the whole constitute circumstances extending the locus in quo to include the defendant's residence; the still and whisky and any fact within that area tending to connect the defendant with the possession of the whisky, though remote, is relevant and admissible. The fact that defendant might and perhaps ought to have been indicted for unlawfully possessing a still does not render the facts inadmissible, if such facts relate to the crime charged.
21 Ala. App. 140.
The facts in evidence justified a refusal of the general charge.
The judgment of conviction is affirmed.
The sentence to hard labor for the costs is not definite, and for that reason the cause is remanded for proper sentence.
Affirmed, and remanded for proper sentence.