Opinion
4 Div. 242.
November 16, 1926.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
George Coley was convicted of distilling and possessing a still, and he appeals. Affirmed.
Ballard Brassell, of Troy, for appellant.
Counsel argue for error in refusal of the affirmative charge and overruling motion for new trial, citing Parsons v. State, 20 Ala. App. 615, 104 So. 556; Barker v. State, 20 Ala. App. 564, 103 So. 914; Stanley v. State, 20 Ala. App. 387, 102 So. 245; Moody v. State, 20 Ala. App. 572, 104 So. 142; Leith v. State, 20 Ala. App. 251, 101 So. 336; Hill v. State, 19 Ala. App. 483, 98 So. 317; Gray v. State, 19 Ala. App. 661, 100 So. 81.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The points of decision involved upon this appeal consist of the action of the court in refusing to defendant several written charges requested, and also the overruling of his motion for a new trial. No exceptions were reserved during the progress of the trial. This applies also to the ruling of the court in denying the motion for a new trial; therefore that question is not presented.
We have read, and carefully considered, all of the evidence adduced upon this trial and are of the opinion that a jury question was presented. It follows therefore that the several written charges of an affirmative nature were inapt and properly refused.
Refused charge 10 is involved, and unintelligible, and was properly refused. Portions of said charge are also abstract.
Such of the remaining refused charges as contain correct propositions of law were properly refused for the reason they were fairly and substantially covered by the court's oral charge. The statute expressly provides that the refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge, etc. Code 1923, § 9509.
We regard the criticism contained in appellant's brief relative to the sentence imposed as being hypercritical. In any event, an error in the wording of the sentence would not affect the judgment of conviction, and if error appeared in the wording of the sentence an order would be here entered correcting the sentence or remanding the case to the lower court for proper sentence. No such necessity appears in this case.
The record proper is without error. Let the judgment of conviction from which this appeal was taken stand affirmed.
Affirmed.