Winter v. State , 133 Ala. 176 ( 1901 )

HARALSON, J.

Only one witness was examined, and that on the part of the State. His evidence tended strongly to show that defendant sold him at the time and place mentioned, a half pint of whiskey, for the price of 35 cents.

In its general charge to the jury, the court stated in a manner not objected to, what constituted a sale, and told them that the State must show beyond all reasonable doubt, that the defendant sold the whiskey in question to the party alleged, or, that not being the owner of nor interested in it, nor interested in the money paid for it, if any was paid, he was acting in the sale for the owner of the whiskey. After this statement, the court stated to the jury: “That there was a sale of. the liquor in this case appears from the evidence almost without dispute.” To this statement, the defendant excepted. This was a charge on the effect of the evidence, an error which was not relieved by other portions of the oral charge in which it appeared, — the question as to whether there was a sale or not, being one for the determination of the jury under all the evidence.

.Parts of the oral charge marked A 'and B, were separately excepted to. These were given in connection with that part of the charge set out above, to which exceptions were reserved, and in the came connection, as a part of the same oral charge, — “That, before they [the jury] could convict the defendant, they must, believe from the evidence beyond all reasonable doubt, that the defendant sold the whiskey to the witness, Keener, or that if he did not own the whiskey, he aided and assisted in the sale as the agent of the owner,” etc. When construed with reference to and in connection with the entire charge and the evidence in the case, these excepted portions of the charge did not contain reversible error. The one marked A, thus construed, did not assume that defendant sold his own liquor.

The first charge refused to defendant, was substantially given in charges 1, 2, 3 requested by defendant; but, without reference to this, it was bad, in that it predicated an acquittal on a part of the evidence. — Nicholson v. State, 117 Ala. 32; Winter v. State, 132 Ala.

Charge 2 was properly refused as tending to mislead the jury. Defendant might have been properly found guilty under the evidence, notwithstanding he was not a man who had liquor to sell.

Without reference to other infirmity in charge 3, refused to defendant, it was a substantial duplicate of charge 6 given, and its refusal may be justified on that ground.

For the error indicated the judgment below is reversed and the cause remanded.