Opinion
6 Div. 311.
January 22, 1924.
Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.
Roy Davis was convicted of manufacturing prohibited liquors, and appeals. Affirmed.
Charge 2, requested by defendant, is as follows:
"2. The court charges the jury that if the defendant is a competent witness in his own behalf and that his testimony is to be considered and weighed as the testimony of other witnesses; and that the jury has no right to ignore or to discard his testimony because his is a defendant; and, if his testimony be reasonable, his manner of testifying indicates he is telling the truth, and if his testimony is not shown by other testimony to be false, and especially if his statement of facts is supported and corroborated by other evidence, then the jury should accept his testimony as true and find a verdict accordingly."
W.S. McNeil, of Fayette, for appellant.
Counsel assign as errors the failure to the court of give the instructions requested by defendant, citing Chaney v. State, 178 Ala. 44, 59 So. 604; Neilson v. State, 146 Ala. 683, 40 So. 221; Moorer v. State, 44 Ala. 15; Parker v. State, 5 Ala. App. 64, 59 So. 518; Bailey v. State, 168 Ala. 4, 53 So. 296, 390; Harris v. State, 123 Ala. 69, 26 So. 515; Amos v. State, 123 Ala. 50, 26 So. 524.
Harwell G. Davis, Atty. Gen., for the State.
No brief reached the Reporter.
The indictment contained two counts. The first count charged the manufacture of prohibited liquors; the second count charged the possession of a still. The defendant was convicted under the first count.
The evidence for the state tended to show that the defendant and others were found operating a still. The defendant ran off and was afterwards arrested.
The defense was an alibi.
There as evidence of the good character of the defendant.
It was permissible for the state to ask a state's witness if he found the defendant at a still in 1922, that being the time the prosecution was laid, and the still inquired about being the identical still for the possession of which the defendant was on trial.
After the defendant ran away from the still the raiding officers found a coat there which was afterwards claimed by the defendant. It was competent for the state to show that there was a check in one of the pockets on which defendant's name was written, and that there were $5 or $6 in the pocket, and that the defendant claimed the coat, the check, and the money for the purpose of identifying the coat as the property of the defendant, and as tending to explain the defendant's admission that the coat was his.
Charge A requested by defendant was properly refused. It was the general charge for defendant as to count 1, and there was ample evidence to convict the defendant of manufacturing prohibited liquors. Fuller v. State, 97 Ala. 27, 12 So. 392.
Charge B was properly refused. It was the general charge for defendant as to the second count. There was evidence upon which the court was justified in submitting to the jury the question of the guilt vel non of the defendant of having in his possession a still. But the defendant cannot complain of the refusal to give the charge because he was convicted under the first count, and this was an acquittal of the charge contained in the second count.
Charge 1 is faulty. A charge which instructs the jury that, if the evidence is susceptible of two constructions, one favorable and the other unfavorable to the defendant, they must adopt the one favorable to him, invades the province of the jury. Fonville v. State, 91 Ala. 39, 8 So. 688; Smith v. State, 88 Ala. 23, 7 So. 103; Johnson v. State, 102 Ala. 1, 16 So. 99.
Charge 2 is faulty. It invades the province of the jury, and singles out part of the evidence. Authorities cited above and Fountain v. State, 98 Ala. 40, 13 So. 492.
We cannot approved charge 4 in the language in which it was requested. The law of this state is that the legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence, to the benefit of which the accused is entitled; and as a matter of evidence it attends the accused until his guilt is by the evidence placed beyond a reasonable doubt. Bryant v. State, 116 Ala. 446, 23 So. 40; Thomas v. State, 117 Ala. 134, 23 So. 636; Amos v. State, 123 Ala. 50, 26 So. 524. But the latter part of the requested charge, as follows:
"Wherever testimony is introduced to establish any fact adverse to the defendant, this presumption rises up as the evidence of a witness to dispute and oppose the adverse testimony of the state, and should be considered by the jury in favor of the defendant,"
is argumentative and is calculated to mislead the jury. 1 Mayf. Dig. p. 173, § 204, and authorities there cited. Furthermore, the rule of law as to the presumption of innocence was correctly and fairly given by the court in its oral charge, and the refusal of the requested charge, if error, should not work a reversal of the case. Acts 1915, p. 815.
We find no error in the record.
The judgment of the circuit court is affirmed.
Affirmed.