Opinion
4 Div. 744.
December 16, 1930.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Florence Carr was convicted of transporting prohibited liquor in quantity of five gallons or more, and he appeals.
Affirmed.
Charge 2, refused to defendant, is as follows:
"Gentlemen of the jury I charge you that the presumption remains with the defendant throughout the entire course of this trial that the defendant is not guilty."
Walters Walters, of Troy, for appellant.
No knowledge on the part of defendant that whisky was in the car nor participation in the act by him being shown, the affirmative charge requested in his favor should have been given. Coggin v. State, 23 Ala. App. 135, 122 So. 186; Peebles v. State, 23 Ala. App. 568, 129 So. 308; Jones v. State, 23 Ala. App. 339, 125 So. 382. Charge 2 correctly states a legal proposition and should have been given. 16 C. J. 534, 536. It was error to have the deputy sheriff sitting in the witness chair, in the presence of the jury, while the indictment was being read and while defendant's plea was being interposed.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence is in sharp conflict. The corpus delicti was proven by the undisputed evidence, and the testimony for the state tended to prove the guilt of defendant. This being the case, the general charge was properly refused.
Refused charge 2 does not state a correct proposition of law. The presumption of innocence is an evidentiary fact, and attends the defendant until that presumption is overcome by the evidence beyond a reasonable doubt. When that time arrives, the presumption fails and continues no longer.
It is insisted by appellant that the court erred in permitting L. E. Fitts, a deputy sheriff, to take the witness stand before the indictment was read to the jury. The bill of exceptions does not show that this was done. But, even if it was done, it was of no moment. The fact that Fitts sat in the witness chair while preliminaries of the trial were being had could not in any way prejudice defendant's rights.
The other exceptions presented are without merit.
There is no error in the record, and the judgment is affirmed.
Affirmed.