Opinion
7 Div. 834.
June 23, 1931. Rehearing Denied August 4, 1931.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Linder Whisenant was convicted of transporting prohibited liquors in quantities of five gallons or more, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Whisenant v. State, 223 Ala. 550, 137 So. 457.
The following charge was refused to defendant: "1. The Court charges the jury that unless the jury is satisfied from all the evidence that defendant owned some interest in the prohibited liquors alleged to have been transported under this indictment, the jury must find the defendant not guilty."
That portion of the oral charge to which exception was reserved is as follows: "Now there is some testimony in this case that the defendants ran off — in other words, there is some evidence of flight, and I charge you this: That the flight of a defendant in a criminal case may or may not be considered as a circumstance tending to prove guilt, depending upon the motive which prompts it, whether a consciousness of guilt and a pending apprehension of being brought to justice causes the flight, or whether it was caused from some other or more innocent motive."
Rutherford Lapsley, of Anniston, for appellant.
It is essential to a conviction under a charge for transporting prohibited liquors that defendant be proven to have some actual interest in the liquor. The oral charge of the court stating that there was some evidence of flight and voluntarily enjoining the jury that they must consider this as tending to establish defendant's guilt was wholly unauthorized on this record and highly prejudicial. Goforth v. State, 183 Ala. 66, 63 So. 8; Allen v. State, 146 Ala. 61, 41 So. 624.
Thos. E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty. Gen. for the State.
Charge 1 ignores the fact that defendant could be guilty if he aided or abetted the other parties. Crittenden v. State, 134 Ala. 145, 32 So. 273; Morris v. State, 146 Ala. 66, 41 So. 274; Harris v. State, 177 Ala. 17, 59 So. 205; Jones v. State, 22 Ala. App. 173, 114 So. 69; Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402; Stewart v. State, 19 Ala. App. 389, 97 So. 684. The jury were merely instructed by the oral charge to consider the evidence of flight in the light of all the surrounding circumstances. It was more favorable to defendant than to the state, and was in no way erroneous.
Conviction for the offense of violating "Five Gallon Law." Acts of Ala. 1927, p. 704.
It was not necessary for appellant to "own" the whisky he was alleged to have transported in order to be guilty. Hence his written requested charge 1 was properly refused.
There is no merit in the exception to the portion of the trial court's oral charge specified, dealing with "flight," etc., by the appellant. In the first place, it was in no sense unfavorable to appellant; but, in the second place, it was not abstract nor erroneous.
There was not only a "scintilla" of evidence, pointing to appellant's guilt, but, we may observe, a wealth of such evidence. Manifestly he was not entitled to have given at his request the general affirmative charge to find in his favor. We see nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.