Opinion
7 Div. 438.
April 12, 1928. Rehearing Denied May 8, 1928. Further Rehearing Denied June 5, 1928.
Appeal from Circuit Court, St. Clair County; Woodson J. Martin, Judge.
Otto Rakestraw was convicted of violating the Prohibition Law, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Rakestraw v. State, 117 So. 923.
The bill of exceptions recites the following:
"Upon the jury list being furnished defendant's counsel from which to strike the jury, defendant moved the court to strike from said jury list the Jurors Montgomery and Stewart, stating to the court that said jurors were related to Mr. J. P. Bowlin, ex-sheriff of the county. Upon being questioned of the relationship by the court, Mr. Bowlin stated the Juror Montgomery was a first cousin of his, and Juror Stewart a nephew by marriage. Defendant moved to strike above two jurors from jury list, and as grounds for said motion stated that the companion case to this case had just been tried and the testimony in the case showed that Mr. Bowlin was a witness in that case and at the time of the raid in question he was there as sheriff and had his two deputies along.
"The court overruled said motion to challenge the two jurors for cause, and to this ruling of the court the defendant then and there duly excepted.
"The defendant moved the court to continue the case on the ground that there were only 24 names on the jury, 2 of which mere Messrs. Stewart and Montgomery.
"The court stated that there were only 24 jurors present, and overruled the motion for continuance.
"To this action of the court the defendant then and there duly excepted."
Frank B. Embry, of Pell City, for appellant.
The motions to strike jurors and for a continuance should have been sustained. Code 1923, § 8610(4).
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
There was a general verdict of guilty rendered by the jury who tried this appellant upon an indictment containing two counts. These counts were in the usual form and charged distilling, etc., prohibited liquors, and the unlawful possession of a still to be used for that purpose.
It is insisted by the appellant that the evidence was insufficient to sustain the verdict and that the court erred in refusing the general affirmative charge requested. Under the rule, where there is any evidence tending to make a case against a party who asks the affirmative charge, the charge cannot be given even though said evidence may be weak and inconclusive. Harrison v. State, 21 Ala. App. 260, 107 So. 225; Suttle v. State, 19 Ala. App. 198, 96 So. 90; Lee v. State, 18 Ala. App. 566, 93 So. 59. The rule above announced in no manner alters or changes the burden or measure of proof announced in practically every criminal case. The effect of the rule is simply to refer to the jury matters concerning which there is conflict in the evidence. This rule, under the conflicting evidence in this case, rendered the affirmative charge unavailable to defendant. The trial court was without authority to give said charge, as the evidence presented a question of fact for the jury.
There was no abuse of discretion of the court in overruling defendant's challenge of Jurors Stewart and Montgomery. No legal grounds for such action were apparent. This applies also to the action of the court in denying the motion to continue the case on the grounds insisted upon.
The remaining exceptions to the court's rulings are so clearly free from injurious error they need no discussion.
The facts of this case made the question of the guilt or innocence of the accused for the jury. The jury decided adversely to defendant, and our opinion is the evidence was ample to justify them in so doing. The whole case was fairly submitted to the jury without error. Let the judgment of conviction, therefore, stand affirmed.
Affirmed.