Opinion
6 Div. 962.
May 5, 1931. Rehearing Denied June 23, 1931.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Mack Burrough was convicted of distilling, and he appeals.
Affirmed.
The following charges were refused to defendant:
5. "I charge you, gentlemen of the jury that this court does not judicially know at what stage liquor becomes a violation of the law, the burden is on the State not to only satisfy you beyond a reasonable doubt that this defendant was actually at the distillery, engaged in the manufacture of liquor, and that the liquor had reached the stage wherein it was being manufactured in violation of the law and if the State has not met this burden of proof in this case, you cannot find the defendant guilty of manufacturing prohibited liquors."
6. "I charge you gentlemen of the jury that where a liquid substance is running from a distillery, it is not sufficient for a witness to say that in his judgment it was whiskey, before he can say that the liquid is whiskey, he must, either drink some of the liquid or either have it analyzed, and, if after considering all the evidence in this case you cannot say beyond a reasonable doubt that, the witness or witnesses either drank some of the liquid or had an analysis made of the liquid, then there is no evidence that the defendant, or any one else, manufactured any whiskey and you must acquit him."
7. "I charge you gentlemen of the jury that the burden is on the State to, not only to satisfy you beyond a reasonable doubt that the defendant is guilty before you convict him, but they must go further and satisfy you to a moral certainty that he is guilty, and if, after considering all the evidence in this case, you are not satisfied to a moral certainty that the defendant is guilty, you must acquit him."
J. L. Stephenson, of Parrish, for appellant.
Defendant's requested charges correctly state the law, and their refusal was error. (5) Moody v. State, 23 Ala. App. 431, 126 So. 495; Anderson v. State, 20 Ala. App. 154, 101 So. 162; (11, 12) Lock v. State, 21 Ala. App. 81, 105 So. 431; Gann v. State, 21 Ala. App. 347, 108 So. 269; Stanfield v. State, 23 Ala. App. 60, 120 So. 467; Haithcock v. State, 23 Ala. App. 460, 126 So. 890; (7) Barker v. State, 20 Ala. App. 564, 103 So. 914; Underwood v. State, ante, p. 191, 132 So. 606; (6) Daugherty v. State, 22 Ala. App. 400, 116 So. 308; Sharp v. State, 22 Ala. App. 562, 118 So. 238.
Thomas E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty. Gen., for the State.
Charge 5 is misleading, is argumentative, and improperly worded. Bell v. State, 2 Ala. App. 150, 56 So. 842; Steele v. State, 159 Ala. 9, 48 So. 673; Bettis v. State, 160 Ala. 4, 49 So. 781. Moody v. State, 23 Ala. App. 431, 126 So. 495, 496, is not in point. Charge 6 does not state a correct principle of law. Code 1923, § 4650; Nix v. Andalusia, 21 Ala. App. 439, 109 So. 182. Charge 7 is incorrectly worded. At any rate it and charges 11 and 12 were covered by the oral charge.
Upon the original submission of this cause, after a careful study of the entire record, including the bill of exceptions, we were of the opinion that the questions apparent were so obviously without merit, as to render it unnecessary for us to write an opinion. We are still of that mind.
However, out of deference to the insistence of appellant's counsel, we will here state our reasons for adhering to the views we hold, with reference to those questions argued by him, for error, in his brief filed on this application for rehearing.
Appellant's written, requested, and refused charge 5 was confusing, misleading, involved, and argumentative. It was properly refused, as written charges, subject to the defects mentioned, always are.
The substance of appellant's written, requested, and refused charges 11 and 12 was given to the jury in the trial court's oral charge. Hence, it was proper to refuse each of them. Code 1923, § 9509.
Appellant's written, requested, and refused charge 7 is inaptly worded, and confusing. Furthermore, the substance of same was given to the jury in the trial court's oral charge. It was properly refused.
Written, requested, and refused charge 6 does not state a correct principle of law. Code 1923, § 4650. It was refused without error.
The application for rehearing is overruled.