Mitchell v. State , 19 Ala. App. 248 ( 1923 )

The defendant, appellant, was charged in the first count of the indictment with distilling and in the second count with having in his possession a still to be used for manufacturing prohibited liquors.

There was evidence for the state that the alleged offense was committed in Talladega county, and evidence for the defendant that it was in Clay county. When there is no proof of venue, it is, when properly presented, a question for the court to pass upon; but when, as in the instant case, it is a question of the sufficiency of the evidence to prove the venue, it becomes a question for the jury, and this court will not interfere, unless the ruling of the trial court was invoked on the sufficiency of the evidence, and this ruling made the ground of attack. Pearson v. State, 5 Ala. App. 73, 59 So. 526; Hubbard v. State, 72 Ala. 164; Ragsdale v. State, 134 Ala. 24, 32 So. 674.

The witness Campbell was properly qualified, and the trial court did not err in permitting him to testify that meal and water were used for making liquor. Veal v. State, ante, p. 168,95 So. 783.

Counsel for appellant insists that the trial court ex mero motu should have given the affirmative charge for the defendant on the second count. A trial court will not be put in error for failing to give the affirmative charge for the defendant where the same was not requested in writing. Section 5364, Code 1907, as amended by Acts 1915, p. 815. Furthermore, there was ample evidence to justify a conviction under the second count.

Requested charges 1, 2, and 3 related to the alcoholic content of the liquor, and referred to in the first count, which charged distilling, etc. A conviction under the second count was an acquittal of the charge of distilling. No error can be predicated upon the refusal of the charges not applicable to the second count.

There is no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.