Opinion
7 Div. 364.
January 31, 1928. Rehearing Denied March 6, 1928.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Sam Pruitt was convicted of unlawfully possessing a still, and he appeals. Affirmed.
The excerpts from the court's oral charge to which exceptions were reserved are as follows:
"It is further the law, gentlemen of the jury, that the unexplained possession of any part or parts of any still, apparatus or appliance or any device or substitute therefor, commonly or generally used for, or that is suitable to be used in the manufacture of prohibited liquors and beverages, is prima facie evidence of guilt, unless explained by the defendant — unless a reasonable explanation is offered by the defendant to the jury, consistent with his innocence. In other words, unless he reasonably explains to the jury their possession, consistent with innocence."
"And it would be immaterial in the case as to when he proposed to manufacture prohibited liquor if he had it for that particular purpose, for manufacturing prohibited liquor, if that was his right and purpose."
"I stated, gentlemen of the jury, that if he had in his possession, within three years before the finding of this indictment, a device suitable for, and upon which prohibited liquors could be made, for the purpose of manufacturing prohibited liquors or beverages, he would be guilty as charged in this indictment, and what I stated in my charge, if he had a device upon which prohibited liquors could be made is withdrawn from you and this statement is substituted in lieu thereof."
The following charges were refused to defendant:
"3. I charge you, gentlemen of the jury, if it be a fact that the officers found whisky on defendant's premises it is no evidence that he is guilty of being in possession of a still."
"8. I charge you, gentlemen of the jury, if there is a probability of defendant's innocence even though there is no reasonable doubt of his guilt, you should acquit him.
"9. I charge you, gentlemen of the jury, if defendant is convicted in this case the officer furnishing the evidence will receive $50 fee, and, I further charge you, you may consider this in weighing the testimony of such officer."
Longshore Longshore, of Gadsden, for appellant.
Evidence of a distinct, substantive offense is not to be received in support of another offense. Glover v. State, 21 Ala. App. 423, 109 So. 125; Folmar v. State, 19 Ala. App. 435, 97 So. 768. It was error to permit the solicitor to ask witness if they had made more than one raid on defendant's place, and a mistrial should have been ordered. Cassemus v. State, 16 Ala. App. 61, 75 So. 267; Whitfield v. State, 21 Ala. App. 490, 109 So. 524; Patterson v. State, 21 Ala. App. 464, 109 So. 375. The oral charge of the court, in reference to prima facie evidence of guilt, was erroneous. Watford v. State, 21 Ala. App. 428, 109 So. 174; Wilson v. State, 20 Ala. App. 62, 100 So. 914. Charge 9 should have been given; it is not subject to the criticism pointed out in Harmon v. State, 20 Ala. App. 254, 101 So. 353.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence for the state tended to prove that defendant was in possession of a still suitable to be used for the purpose of manufacturing whisky. At the same time and place where the parts of the dismantled still were found, the state's witnesses were allowed to testify over objection and exception that there were two barrels of beer, a large can that had had a fire around it, with some malt in the bottom which smelled like whisky, a furnace place about 30 feet away from where the beer and still parts were hidden, and at the place where the still parts were hidden under the fodder a three-gallon jug about two-thirds full of "blue looking" whisky. This was all a part of the res gestæ, related to the still parts, to be considered by the jury in passing upon the question of whether defendant possessed the still for the unlawful purpose of making whisky.
It has many times been decided that a witness who knows may testify that a certain designated outfit is a complete still and suitable for making whisky, and a witness may also state as a shorthand rendition of a fact that a can had "fresh smoke" on it.
There was nothing prejudicial in allowing state's witness Leath to state that he had been to defendant's house several times and for that reason could not remember whether defendant was at home at the time the still was found.
Witnesses for the state were permitted over objection and exception by defendant to say that they found a "furnace place there." This was but a shorthand rendition of facts. Moreover, this answer was immediately followed by a description of what the witness found.
On cross-examination of Vera Miller, a witness for defendant, the solicitor asked if the officers made more than one raid. The question was asked twice, and both times the witness answered that she did not know. This was no proof of any fact prejudicial to defendant.
A mistrial will not be ordered on the motion of the defendant, on account of illegal questions asked by the solicitor, where the court sustained defendant's objections, unless it clearly appears that the rights of the defendant have been so prejudiced as to render a fair trial a matter of grave doubt. The objection made in this case and sustained by the court is only an incident in the trial of almost if not every criminal case. To hold with the contention of defendant in this case would be to impede the orderly progress in criminal trials.
The excerpts from the court's general charge to which exceptions were reserved are in line with the statutes and the oft-repeated decisions of this court.
Refused charges 2 and 6 were covered by the court in his oral charge. Refused charge 3 invades the province of the jury. Refused charge 8 has frequently been condemned. Refused charge 9 is invasion of the province of the jury.
We find no error in the record, and the judgment is affirmed.
Affirmed.