Kirk v. State , 10 Ala. App. 216 ( 1914 )

WALKER, P. J.

The court was not in error in permitting an amendment of the affidavit upon which the defendant was prosecuted. — Wright v. State, 136 Ala. 139, 34 South. 233.

A deputy sheriff, as a witness for the state, testified as to the sheriff and himself going to the defendant’s place of business and finding the defendant behind the counter and a crowd of negroes in front of it, the counter having on it several empty beer bottles, a whisky glass about half full of whisky, and bar fixtures, spoons, glasses; and bottles of beer on ice back of the counter. Over the objection of the defendant, and in answer to the question, “What did this crowd of negroes do when you and the sheriff went in?” the witness was permitted to state that “they all ran out of the back door except the defendant.” What the crowd did on the occasion in question was part of an occurrence in which the defendant was a participant. The spontaneous and precipitate flight, on the appearance of the officers of the law, of those with whom the defendant apparently was having dealings, was not without significance as an indication that an illicit transaction had been interrupted; and this circumstance, in its connection with others testified to, properly could be looked to in determining the nature of the einplqyment in which the defendant was engaged. It had some tendency to elucidate the conduct of the defendant himself. The incident testified to was a part of the res gestee, and the evidence of it was properly admitted. — Wesley v. State, 52 Ala. 182; Young v. State, 149 Ala. 16, 43 South. 100.

It is enough to say of the action of the court in oyerruling the defendant’s motion to exclude the statement of the witness McCullough, that “no one else seemed to be in possession except defendant,” that the bill of exceptions does not negative the conclusion that the statement Avas made in a responsive ansAver to a question to which no objection was made. A party cannot com- . plain of the court’s refusal to exclude evidence Avhich was not objected to Avhen it was offered.

The part of the oral charge to which an exception was reserved embodied the statement of the separate proposition that the keeping of prohibited liquors on premises not used exclusively as a dwelling is made by law prima facie evidence that such liquors are kept for sale, or Avitk the intent to sell the same, contrary to law. This was but a statement of a rnle of evidence established by statute. — Acts of Ala. Special Session 1909, p. 64, § 4. The statement excepted to was not subject to exception as a whole.

The written charge refused to the defendant which in effect asserted the absence of evidence to shoAV that Jim Jones and the defendant were partners in business stated no proposition of law, and the court was not under a duty to give it. — Anderson v. State, 160 Ala. 79, 49 South. 460; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 South. 109. Besides, if there Avas error in refusing to give that charge, it was error without injury, as the propositions of law applicable to the inquiry to which it referred were fully stated in written charges given at the defendant’s request.

In the provision that the offense with which the defendant was charged is “ptinishable by a fine of not less than $50 nor more than $500, to which, at the discretion. of the court or judge trying the case, may be added imprisonment in the'county jail or confinement at hard labor for the county,” etc.— (Acts of Ala-Special Session, 1909, pp. 10, 11, §§ 3, 5), there is nothing to suggest a legislative intention to discriminate between cases tried by a jury and those tried without the intervention of a jury. The authority to impose a punishment in addition to a fine “at the discretion of the court or judge trying the case” exists whether the issues of fact are tried in the one way or the other. There is no merit in the suggestion that the court was without authority to impose the hard labor sentence as an additional punishment for the offense of which the defendant was convicted.

Affirmed.