Opinion
8 Div. 374.
April 11, 1933. Rehearing Denied May 9, 1933.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Irvin Watkins was convicted of distilling and possessing a still, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Watkins v. State, 148 So. 748.
This charge was refused to defendant: "D. The court charges the jury that the defendant is not on trial for the offense of buying prohibited liquor and if you believe from the evidence that the defendant was at or in the vicinity of the still for the sole purpose of buying whisky there, without any past or present agreement as to the purchase of whisky between this defendant and the operators or owners of the still, it is your duty to acquit him."
Seybourn H. Lynne, of Decatur, for appellant.
The oral charge of the court should be confined to the statement of propositions of law applicable to the evidence adduced in the case. The portion of the oral charge to which exception was reserved was invasive of the province of the jury. Johnson v. State, 8 Ala. App. 207, 62 So. 328; Horn v. State, 102 Ala. 144, 15 So. 278. When the remarks of the solicitor are calculated to influence the passion or arouse the prejudice of the jury against the defendant, they ought to work a reversal. Nor can direction by the court to disregard the remarks have the effect of eradicating the poison. Anderson v. State, 209 Ala. 36, 95 So. 171. Charge D states a correct proposition of law, is not abstract in the light of defendant's testimony, and is not covered by other instructions.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence was in conflict, making the question of guilt of defendant one of fact for the jury.
The following appears in the bill of exceptions:
"Gentlemen, something has been said about the Sheriff had not authorized certain witnesses to go over and locate the still. I charge you that the highest duty of a citizen is to report and turn over criminals in support of his government.
"By the Court: I don't think I said that and stopped there. I think I went on with the sentence. I was defining to you at the time, the duty of a citizen with reference to arresting violators of the law; and if they are violating the law, they would be criminals. I had no purpose or thought in that of charging whether this defendant was a criminal or not, and you must not so understand it, and I don't think you did."
Preceding this is a heading by the clerk: "Exceptions to court's charge." If the above can be considered as an exception to an excerpt from the court's oral charge, we find by a reference to the court's oral charge on that point that the court is not correctly quoted and that what he really instructed the jury was materially different from the excerpt above set out.
In the argument of the solicitor to the jury he referred to the defendant as a moonshiner. This was objected to by the defendant and the objection was sustained. There is therefore nothing to review.
Refused charge D does not exclude the act of aiding and abetting on the part of defendant, and for that reason is bad.
The oral charge of the court was full and gave to the defendant every right to which, under the law, he was entitled.
We find no error in the record, and the judgment is affirmed.
Affirmed.