Opinion
6 Div. 755.
June 24, 1930. Rehearing Denied August 19, 1930.
Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.
Fred Dodd was convicted of distilling, and he appeals.
Affirmed.
The following charges were refused to defendant:
"1. I charge you, gentlemen of the jury, that the same amount of proof is required in this case as is required in any other criminal case; and unless you would convict the Defendant on any other criminal charge under the evidence which has been offered by the State in this case, you should not convict him of making liquor or having a still in his possession."
"3. The Court charges you that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of the guilt of this Defendant; that, before you are authorized to convict this Defendant, the evidence must be so strong that it convinces each Juror of the Defendant's guilt beyond all reasonable doubt; and, if, after a consideration of all the evidence, the jury is not convinced beyond a reasonable doubt of this Defendant's guilt, you cannot convict him."
Roy Mayhall, of Haleyville, for appellant.
Counsel discusses the questions raised and treated, but without citation of authorities.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Charge 1 refused to defendant states the policy of the law as it has been many times declared, but is an argument, and its refusal will never justify a reversal when the trial judge has instructed the jury fully as to the law of the case as was done in this trial.
Refused charge 3 is misleading, and was properly refused.
It is true, as contended by the appellant, that the conviction in this case rests solely upon the testimony of a special deputy, who carried a "blue card" issued by the chief law enforcement officer, but that fact is not ground for impeachment. This testimony, if believed by the jury, was sufficient upon which to predicate a verdict. The testimony was direct and unequivocal that the defendant was present and participating in the crime charged, and, while there were many witnesses testifying for defendant tending to establish an alibi, the decision is not for us.
It was competent for the state to prove by the witness Duncan that he had seen the still in question a few days before the date on which defendant is charged with being present. The offense charged in count 2 is continuing, and evidence of the existence of the still prior to and at the time defendant was found there is a part of the res gestæ.
Other exceptions reserved are without merit.
We find no error in the record, and the judgment is affirmed.
Affirmed.