Opinion
2 Div. 529.
November 21, 1933. Rehearing Denied December 19, 1933.
Appeal from Circuit Court, Wilcox County; John Miller, Judge.
Jesse Ingram was convicted of unlawfully possessing a still, and he appeals.
Affirmed.
Charge 8, refused to defendant, is as follows: "I charge you, gentlemen of the jury, that if all the evidence merely shows that a still was found within two or three hundred yards of defendant's house and that a path led from the house to the still, these facts alone would be insufficient for you to convict the defendant under either count of the indictment."
S.C. Godbold, of Camden, for appellant.
The statements made by the witness Albritton were patently incompetent and illegal, and it was the duty of the court, on appellant's motion to exclude to eradicate the effect thereof from the minds of the jury by direct, positive, unequivocal instruction. The failure of the court so to do is reversible error. Pelham v. State, 23 Ala. App. 359, 125 So. 688; Davis v. State, 18 Ala. App. 482, 93 So. 269; Mc Kissic v. State, 23 Ala. App. 220, 123 So. 285; Booth v. State, 22 Ala. App. 508, 117 So. 492; Patterson v. State, 23 Ala. App. 428, 126 So. 420; Murphy v. Hays, 221 Ala. 566, 130 So. 202; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565. Where grossly prejudicial and incompetent testimony has not been adequately excluded upon motion, a new trial should be granted. Pelham v. State, supra. Constructive possession incident to location is to be based only on the premise that the locality is under the dominion or control of the person sought to be charged with such possession. Campbell v. State, 3 Ala. App. 76, 57 So. 412; Eudy v. State, 23 Ala. App. 236, 123 So. 291.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The testimony of the principal state's witness, if believed by the jury beyond a reasonable doubt, was sufficient upon which to base a verdict of guilt. It follows that the charge requesting affirmative instructions to acquit was properly refused.
Refused charge 8 invades the province of the jury and was for that reason properly refused.
The statement of the witness Albritton, "The negro dodged me all that evening," was patently illegal and upon motion of defendant was ruled out. The ruling being with the defendant, there is nothing to except to. The same is true of the statement of the witness, "I had been told it was Jesse's still," and also as to the statements by the witness that: "The drum had been used to make whiskey." "I saw a negro running across the field * * * I think it was Jesse."
In all of the foregoing instances the court ruled with the defendant, leaving nothing upon which to base an exception. However, appellant insists that the court did nothing to eradicate the prejudice resulting from this testimony, and for that reason a new trial should have been granted. The character of the testimony is not such as to arouse the prejudice or passions of the jury to that extent requiring the granting a new trial on this point.
No exceptions were reserved to the excerpts from the court's oral charge as now insisted upon in brief of appellant's counsel. In the absence of exceptions or of an inclusion of the excerpts as grounds for the motion for a new trial, the points raised in brief only are not considered. Other exceptions have been examined and found to be without merit.
There is no error in the record, and the judgment is affirmed.
Affirmed.