Chappell v. State , 19 Ala. App. 648 ( 1924 )

From a judgment of conviction for distilling prohibited liquors this appeal is taken. Defendant was duly sentenced to an indeterminate period of not less than 12 months' nor more than 13 months' imprisonment at hard labor in the penitentiary. The objections urged as to the validity of the judgment is without merit. That portion of the judgment which undertakes to sentence the defendant "to such an additional time as is necessary to pay the costs in this behalf expended" is without authority of law, and is void, but will be treated as surplusage, and of no effect. The judgment appealed from will not be reversed because of this unauthorized sentence for cost, but will be here corrected, resulting that the defendant be required to serve only the indeterminate sentence pronounced of not less than 12, months, the minimum, and not more than 13 months, the maximum, term of imprisonment at hard labor in the penitentiary, as a punishment fixed by the court.

There is no merit in the insistence that the verdict of the jury was insufficient to support the judgment of guilt. The verdict was: "We, the jury, find the defendant guilty, as stated in the indictment." The criticism urged against this verdict is that the words "as stated in the indictment" are used instead of the words "as charged in the indictment." The words "stated" and "charged" are interchangeable, and may be termed as being synonymous when used in this manner. Moreover, the usual words used in a verdict, "as charged in the indictment," are nonessential to its validity, and may be treated as surplusage. without these words the verdict would be sufficiently specific and free from ambiguity. Roden v. State,13 Ala. App. 105, 109, 69 So. 366; McDonald v. State,118 Ala. 672, 23 So. 637; Blount v. State, 49 Ala. 381; Giles v. State, 52 Ala. 29.

Pending the trial no exceptions were taken to the rulings of the court upon the testimony. The remaining insistences of error are predicated upon the refusal by the court to give several special written charges requested in behalf of defendant.

Charges 7, 8, 9, and 10 were the general affirmative charge, and were properly refused, as there was ample evidence upon which to base the verdict of guilt; the state witnesses all testifying that they saw this defendant and another, not on trial, engaged in the act of distilling whisky. Under the whole testimony a jury question was presented. Such of these charges as refer to the second count of the indictment also were properly refused, and the second count was not submitted to the jury for its consideration, the court having entered a nol pros of said second count at the close of the testimony, and the state elected to proceed under the first count only.

Charge 4 was invasive of the province of the jury, and was properly refused. Davis v. State, ante, p. 94, 96 So. 369; and cases cited.

Charge 5 was not only abstract, but was also invasive of the province of the jury. This charge was properly refused.

Charge 6 refused to defendant was fairly and substantially covered by given charge 2; hence its refusal was not error.

Refused charge 11 is wholly abstract under the undisputed testimony in this case; its refusal was without error.

The oral charge of the court and the charges given at request of defendant fully cover refused charge 12.

Refused charge 13 pretermits a consideration of all the evidence; for this and other reasons it was properly refused.

The oral charge of the court fairly and substantially covered refused charges 16 and 17; the court therefore was under no duty to give these charges.

Charge 18 was properly refused. The jury is required to base its verdict upon the whole evidence in a case, and a charge which authorizes the jury to base its verdict upon a part of the testimony is properly refused. Moreover, the proposition of law attempted to be incorporated in charge 18 was fully covered by the court's oral charge.

Refused charge 14 is covered by given charge 15 and by the oral charge.

The record is free from error. The judgment appealed from and, as stated, the sentence of this defendant to not less than 12 months and not more than 13 months at hard labor in the penitentiary are affirmed.

Corrected and affirmed.