Opinion
4 Div. 376.
November 20, 1928. Rehearing Denied January 22, 1929.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
John Windham and George Pridgen were convicted of possessing a still, and they appeal. Affirmed.
Certiorari denied by Supreme Court in Windham v. State, 219 Ala. 504, 122 So. 805.
The portion of the oral charge of the court to which exception was taken is as follows:
"Now the defendant may also be guilty whether he had the still or not, just like I am here now, while I am sitting here charging you, I might be guilty of murdering a man in Columbus, Georgia. Well, you may wonder how that is, but it is because I may send a man there — it has been done time and again — I might send a man and pay him and get him to go up there and kill the man for me, and if I aid, counsel, or encourage, or abet him in the perpetration of that crime I am equally guilty with the man who actually pulls the trigger, or makes the stab. So that Windham here may be guilty although he did not actually have that still down there himself. It may have been Pridgen's still; even if it was Pridgen's still and if Windham was present and aided, abetted, counseled, or encouraged him in order to possess that still and erect it up there for the purpose of manufacturing, or making, or producing prohibited liquors, as I have defined them to you, then he would be equally guilty with Pridgen, it taking that to constitute it."
Exception was taken to that part of the oral charge stating "that Windham may have been guilty even though he were not present," on the ground that "there is no testimony in the case that could have made him guilty unless he were the party identified; * * * there is no evidence that connects him with being guilty if he was not present."
The solicitor in argument to the jury remarked: "The evidence shows this man to be an outlaw."
Eugene Ballard, of Montgomery, for appellants.
The evidence showed, if anything at all, an active participation by Windham. The oral charge of the court was inapplicable and prejudial. Crane v. State, 111 Ala. 45, 20 So. 590; McIntosh v. State, 140 Ala. 137, 37 So. 223; Gilliam v. State, 50 Ala. 145; Beck v. State, 80 Ala. 1; State v. Vance, 80 Ala. 356. Witness Pate should have been permitted to testify that on the day of the raid he saw Windham in Troy. 22 C.J. 213. The argument of the solicitor was objectionable and prejudicial. 3 Bouv. Law Dict. p. 2433 (Outlaw); Drew v. Drew, 37 Me. 389; 21 A. E. Ency. 1021; 29 Cyc. 1544.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
These two defendants were indicted jointly, tried separately, and each convicted of the offense of having in possession a still, etc., to be used for the purpose of manufacturing prohibited liquor. They have appealed jointly to this court.
In the trial of the Windham Case the portion of the oral charge to which exception was reserved did no more, in our opinion, than undertake to cover in a comprehensive manner the elements of "possession," and, if it could be said that the part referred to was abstract in this particular case, it is inconceivable to our minds that the appellant Windham could have been injured by it. The witness Tate, stating that he did not know of the "raid" of his own personal knowledge, could not, of course, testify that he saw appellant Windham at a named place on the day the "raid" was made.
We do not think the portion of the solicitor's argument objected to transcended the rule laid down in the case of Cross v. State, 68 Ala. 476. It will be noted that the solicitor did not undertake to make any statement as of a fact, which found no support in the evidence, but merely his conclusion as to what the evidence showed. This he might properly do.
We have carefully searched the records in each of the appeals here treated, and, finding no prejudicial error, the judgments are affirmed.
Affirmed.