Opinion
4 Div. 833.
May 10, 1932.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Walt R. Lashley was convicted of violating the prohibition law, and he appeals.
Reversed and remanded.
At the conclusion, and as a part, of the oral charge the court instructed the jury as follows: "So that, Gentlemen, if you are satisfied beyond a reasonable doubt of defendant's guilt under this indictment, as I have defined it to you, then it would be your duty to return a verdict of guilty, in which event the form of your verdict would be: 'We, the jury, find the defendant guilty and assess a fine of' __________ so many dollars, naming the sum, not more than $500.00 nor less than $50.00; either of those two sums or any sum between those two amounts that you see proper to impose. * * *"
Thereupon the defendant's counsel noted an exception as follows: "We note an exception to that part of the charge as follows: * * * In which event the form of your verdict would be, 'we, the jury, find the defendant guilty and assess a fine of' __________ so many dollars, naming the sum, not more than $500.00 nor less than $50.00, either of those two sums or any sum between those two amounts that you see proper to impose, on the theory that the jury may find him guilty and not assess any fine at all if they choose."
C. L. Rowe, of Elba, for appellant.
It is reversible error to allow the introduction in evidence of a bottle containing whisky upon which is a label bearing the name of the accused, when such label was put upon the bottle in the absence of the accused by the sheriff. McGee v. State, 24 Ala. App. 124, 131 So. 248. When an offense may be punished in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine, but may find him guilty and leave the imposition of punishment to the court. The charge of the court that in the event the jury found defendant guilty they should assess a fine of not less than $50 and not more than $500 was reversible error. Code 1923, §§ 5286, 4622; Acts 1927, p. 714; May v. State, 22 Ala. App. 239, 114 So. 423.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was convicted for having in his possession one pint bottle full of whisky and a pint bottle partially full which the sheriff found "sticking down in the cushion" of an automobile in which defendant had been riding. The bottle full of whisky was taken from the car by the sheriff and labeled with defendant's name. The other bottle was also taken out but was not produced on the trial. The car was not in possession of defendant, and he had no interest therein, and there was no evidence that defendant knew the whisky was in the car or that he ever had anything to do with it, other than the circumstances of his presence in the car and the fact that he was seen drinking from a bottle at the side of the car while it was stopped in the road. There was no reason why the sheriff labeled the bottle with defendant's name other than his conclusion that it belonged to defendant. Wesley Ham was the owner of the car, was in possession of it and driving, and this defendant was only a passenger. There being no testimony tending to connect defendant with the possession of the whisky, other than the conclusion of Sheriff Lightner, who labeled his conclusion on the bottle, and, over the objection and exception of defendant, passed it on to the jury, the defendant was entitled to the general charge.
It was also error for the court to allow the label placed on the bottle by the sheriff to remain on the bottle when it was introduced in evidence. This was only the conclusion of the sheriff, not admissible, and introduced in such way as to be hurtful to the defendant's cause.
There was no error in the form of the verdict given by the court to the jury. If the defendant desired an instruction under section 5286 of the Code of 1923, he should have requested the court to so instruct them. In the absence of a refusal of the court to give such a charge, no error will be imputed.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.