Opinion
4 Div. 55.
May 8, 1934.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Wes Talley was convicted of unlawfully possessing a still, and he appeals.
Affirmed.
The following charge was refused to defendant:
"5. No matter how strong may be the facts, if they can be reconciled with the theory that another may have committed the crime, the defendant should be acquitted."
J. N. Mullins, of Dothan, for appellant.
Where the preponderance of the evidence is against the verdict rendered, a new trial will be granted. Bufford v. State, 25 Ala. App. 99, 141 So. 359; Roan v. State, 225 Ala. 428, 143 So. 454; Holliday v. State, 22 Ala. App. 267, 114 So. 674. Allowing the jury to separate for the night constituted ground for a new trial. Butler v. State, 72 Ala. 179 : Thompson v. State, 23 Ala. App. 565, 129 So. 297; Payne v. State, 226 Ala. 69, 145 So. 650. Charge 1 was not covered by the oral charge, but, if so, this did not authorize the court to refuse it. Snyder v. State, 145 Ala. 33, 40 So. 978; Storey v. State, 71 Ala. 329. Charge 5 is correct and its refusal was error. Bowen v. State, 140 Ala. 65, 37 So. 233; Pickens v. State, 115 Ala. 42, 22 So. 551.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Charge 5 was properly refused for that it was not predicated upon a reasonable theory of some person other than defendant committing the crime. Goocher v. State, 227 Ala. 337, 149 So. 830; Ledlow v. State, 221 Ala. 511, 129 So. 282; Pitman v. State, 148 Ala. 612, 42 So. 993. Charge 1 being substantially covered by the court's oral charge, there was no error in its refusal. Code 1923, § 9509; Kelley v. State, 226 Ala. 80, 145 So. 816; Jackson v. State, 226 Ala. 73, 145 So. 656. Defendant's motion for new trial on the ground of separation of the jury is not subject to review, as there was no evidence adduced to support it. Smith v. State, 165 Ala. 50, 51 So. 610; Jordan v. State, 225 Ala. 350, 142 So. 665; Schrimsher v. State, 25 Ala. App. 471, 149 So. 353.
The principal insistence of appellant is that the evidence is not sufficient to support the verdict. On that question the testimony of two witnesses was positive as to the facts constituting the corpus delicti and the identity of the defendant as one of the guilty agents. The defense was an alibi. Witnesses for defense were just as positive that defendant was somewhere else at the time alleged and proven by the state. The decision of this question was for the jury, and this court would not be warranted in disturbing the verdict.
One of the grounds for defendant's motion for a new trial is that, after the closing of the testimony, the arguments of counsel, and the charge of the court, the jury was allowed to separate for the night. If this were so, there might be something in defendant's insistence, but the bill of exceptions is silent on the question, in the absence of which there is nothing for us to review. Schrimsher v. State. 25 Ala. App. 471, 149 So. 353. The case of Payne v. State, 226 Ala. 69, 145 So. 650, correctly states the law. When the unauthorized separation of the jury is shown, the presumption of injury arises, but no burden rests upon the state until it is made to appear that the jury actually separated.
Refused charge 1 was fully covered by the court in his oral charge.
On authority of Goocher v. State, 227 Ala. 337, 149 So. 830, Perkins v. State, 20 Ala. App. 276, 101 So. 770, Ward v. State, 21 Ala. App. 551, 109 So. 897, and many other decisions of similar import, defendant's refused charge 5 is held to be bad.
We find no error in the record, and the judgment is affirmed.
Affirmed.