Opinion
8 Div. 694.
March 26, 1929. Rehearing Denied April 30, 1929.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Clayborne Lyles was convicted of unlawfully possessing a still, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Lyles v. State, 219 Ala. 380, 122 So. 612.
These charges were refused to defendant:
"4. I charge you gentlemen of the jury, that, when the evidence relied upon for a conviction is circumstantial, the chain of circumstance must be complete and of such character as to convince beyond all reasonable doubt, and if the circumstances shown and proven, with the other evidence in the case, fails to convince you beyond a reasonable doubt that the defendant is guilty then you should return a verdict of not guilty in this case.
"5. I charge you gentlemen of the jury, that, when the evidence relied on for a conviction is circumstantial, the chain of circumstances must be complete and of such character as to convince beyond a reasonable doubt, and, if the circumstances as proven fail to so convince you beyond a reasonable doubt, that the defendant is guilty, then you should return a verdict of not guilty."
"7. I charge you that the prima facie case made by the possession of a part of a still is not sufficient generally to rebut the presumption of law that the defendant is innocent until his guilt is proven beyond a reasonable doubt."
Defendant excepted the following portions of the court's oral charge:
"If he had a still, apparatus, appliance, device or a substitute for a still and he had it in his possession for the purpose of making liquor, then he had it in his possession in contemplation of law; and if you are satisfied of that from the evidence beyond a reasonable doubt, it would be your duty to convict him."
"If you are satisfied from the evidence beyond a reasonable doubt that he was there and was in possession of that stuff whatever it was that the officers found there and he was in possession of it for the purpose of making liquor it would be your duty to convict him."
Bradshaw Barnett, of Florence, for appellant.
Counsel argue for error in the oral charge of the court and in the refusal of defendant's requested charge 7, citing Wilson v. State, 20 Ala. App. 62, 100 So. 914; Scott v. State, 20 Ala. App. 360; 102 So. 152; Barker v. State, 20 Ala. App. 564, 103 So. 914; Segars v. State, 86 Ala. 59, 5 So. 558; Cole v. State, 16 Ala. App. 55, 75 So. 261; Howard v. State, 21 Ala. App. 89, 105 So. 721; Code 1923, § 9507. When a trial judge has made an erroneous ruling, it is his duty to correct it. Snoddy v. State, 20 Ala. App. 168, 101 So. 303; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565. Charges 4 and 5 should have been given. Howard v. State, 108 Ala. 571, 18 So. 813; Booker v. State, 76 Ala. 22; 2 Wharton's Cr. Ev. (10th Ed.) 1032, 1785, 1833; 1 Wharton, p. 36; James v. State, 22 Ala. App. 183, 113 So. 648.
Charlie C. McCall, Atty. Gen., for the State.
No brief reached the Reporter.
In his excellent brief filed in this case, appellant's counsel propounds to the court four inquiries involving the issues presented on this appeal as follows:
(1) "Did the Court commit error in refusing Charge No. 7, which was requested in writing?"
(2) "Did the Court commit error in permitting the solicitor to prove, over the timely objection of the defendant, that defendant's witness, Jim Olive had been convicted and served a term in the penitentiary in the State of Tennessee, for a felony, when it was ascertained that the offense referred to did not involve moral turpitude."
(3) "Did the Court commit error in refusing charges requested in writing numbered 4 and 5?"
(4) "Did the Court commit error in charging the jury in its oral charge 'if he had a still, apparatus, appliance, device or substitute for a still and he had it in his possession for the purpose of making liquor, then he had it in his possession in contemplation of Law?"
In disposing of this appeal we follow the contentions of appellant as above.
Refused charge 7 is invasive of the province of the jury. When the state makes out a prima facie case by proof of the possession of a part of a still, etc., commonly or generally used for or that is suitable to be used in the manufacture of prohibited liquors, etc., the question is then for the jury, and if not explained to their satisfaction a verdict of guilt is authorized and will not be disturbed on appeal. Freeman v. State, 21 Ala. App. 629, 111 So. 188; Arthur v. State, 19 Ala. App. 311, 97 So. 158.
The court was in error in permitting the state to ask the witness Olive if he had not been convicted of a felony in the state of Tennessee, because it was not shown that such felony involved moral turpitude; but this error was subsequently corrected by the court and the evidence excluded. This eliminates the exception and leaves us nothing to review. The circuit court has already reviewed the ruling and decided it with the appellant.
Refused charges 4 and 5 as requested by defendant are abstract. The conviction of this defendant does not rest upon circumstantial evidence.
That part of the court's oral charge to which exception was reserved is not a charge upon the effect of the evidence. The court simply stated the crime charged and left it to the jury to determine from the evidence whether it was true. The whole charge of the court must be read in connection with the excerpt.
Let the judgment be affirmed.
Affirmed.