Opinion
7 Div. 901.
February 9, 1932.
Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.
Claud Berry was convicted of possessing a still, and he appeals.
Affirmed.
Charge 5, refused to defendant, is as follows: "These written charges read to you by the court are statements of the law applicable to the law and evidence in this case, and are as much a part of the law as what the court said to you in his oral charge and should not be disregarded by the jury; and if, under the evidence as it comes from the witnesses, and the law as charged you orally by the court and in the written charges, you have a reasonable doubt of defendant's guilt then the jury should acquit the defendant."
Haralson Son and J. A. Johnson, all of Ft. Payne, for appellant.
Where witness is not shown to be qualified, he may not testify that a still is a complete distilling outfit upon which liquor could be made. Johnson v. State, ante, p. 316, 134 So. 821. Charge 5 is a correct statement of law, and is not otherwise covered. Its refusal was error. Richards v. State, 218 Ala. 660, 120 So. 148.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The state's witness was properly qualified, and he was allowed to testify relative to the still without error. Weeks v. State, 21 Ala. App. 397, 109 So. 117; Horton v. State, 20 Ala. App. 55, 100 So. 620: Mitchell v. State, 19 Ala. App. 248, 96 So. 653; Veal v. State, 19 Ala. App. 168, 95 So. 783.
Appellant was convicted of the offense of unlawfully being in possession, etc., of a still, etc., to be used for the purpose of manufacturing prohibited liquors, etc.
There was no error in allowing the state's witness Smith to testify that the still in question was a "complete distilling outfit." He was properly qualified as an expert. Weeks v. State, 21 Ala. App. 397, 109 So. 117; Horton v. State, 20 Ala. App. 55, 100 So. 620.
What we have said above is true as to the testimony of this same witness that "(prohibited) liquor could have been made on that outfit." Authorities supra.
Appellant's written, requested, and refused charge 5 was argumentative, and hence properly refused. The substance of same, other than the portion which was a mere argument, was covered and included in the trial court's oral charge.
We discover, nowhere, any prejudicially erroneous ruling, and the judgment of conviction is affirmed.
Affirmed.