Harmon v. State , 20 Ala. App. 254 ( 1924 )

The rulings of the court upon motion to quash the indictment, and upon the demurrer to indictment, are so clearly free from error they need no discussion.

Charge 5 refused to defendant was so refused without error. The court is without authority to instruct the jury as to its course of conduct and direct a verdict, where the evidence in a case is in conflict, or where two conclusions can be drawn, one tending to establish the guilt of the accused and the other tending towards his innocence. It is the prerogative of the jury, and not the court, to determine what the finding of the jury shall be, and its course of conduct under such conditions. Davis v. State,19 Ala. App. 94, 96 So. 369 and cases cited. Moreover, the court gave charge 6 requested by defendant, and this charge fairly and substantially covers refused charge 5. For this reason, also, the refusal of said charge was without error.

Refused charges H, I, K, M, and N pretermit or ignore the accusation contained in the second count of the indictment, and therefore each of these charges was properly refused. A different question might have been presented, under the evidence in this case, had these several charges been limited to the first count of the indictment, which charged the defendant with distilling, etc. But the requested charges referred to the indictment as a whole and required defendant's acquittal, notwithstanding the accusation of the unlawful possession of a still to be used for the purpose of manufacturing prohibited liquors contained in the second count of the indictment, and also the evidence adduced in support of said count.

Refused charge L deals with the interest and consequent bias of the sheriff or other officer or person who furnished the evidence and was instrumental in bringing about a conviction in this case. We are of the opinion that the substance of this charge was covered by the court in the oral charge, where the court instructed the jury:

"In weighing the testimony, weigh it carefully, and weigh it in the light of the facts and circumstances of each individual case. If the witnesses are interested in the case, or in the result of the case, take that fact into consideration."

Other expressions by the court in its oral charge of similar import referred to the proposition of law undertaken to be embodied in this charge, and might be said to fairly and substantially cover same. Moreover, the charge in question was also properly refused for pretermitting the steps or procedure necessary to secure the reward fixed by statute.

The statute provides:

"There shall be charged in the bill of cost [to be paid and collected as other items of cost] the sum of $50.00 to be allowed the sheriff or other [officer or] person who furnished the evidence and brought about the conviction and who shall satisfy the presiding judge that he is the person entitled to said sum and shall receive from the judge a certificate to that effect."

Acts 1919, p. 1086, § 4.

The charge was properly refused. Furthermore, this charge designates specifically the "sheriff," and to that extent is abstract here for the reason it does not appear that the sheriff was examined or gave evidence as to the main facts on the trial of this case, nor does it appear that the sheriff was among the officers who conducted the "raid," as termed by the witnesses, nor did the sheriff, so far as the record shows, participate or assist in the arrest of this defendant in this case.

The testimony of the several state's witnesses tended to show that this defendant was caught by them at the still in question, and in the actual operation thereof. In addition to this testimony state witness John Kemp testified to the voluntary confession of the defendant, to the effect that defendant stated the still was his and that the other parties didn't have anything to do with it. The defendant denied these facts and testified in explanation of his presence at the still:

"The occasion of my being over there was to get a drink of liquor, and Mr. Hogg and Mr. Poe went with me, at Mr. Hogg's request."

This conflict in the evidence presented a question for the determination of the jury.

In the court's rulings upon the testimony, numerous exceptions were reserved and are here insisted upon as being error. We have examined each of these rulings complained of and have reached the conclusion that, under the clear-cut issue of fact presented for the determination of the jury, no injury resulted to defendant in any of the rulings upon the admission or exclusion of the testimony. The evidence without dispute showed the corpus delicti, as there was no conflict in the evidence as to there being a complete still at the time and place designated; nor that the still was then and there being operated, with fire under the still and beer in the still, and large quantities of beer in barrels near by. The only issue of fact, therefore, for the determination of the jury was the connection of the defendant with the still and its operation. The jury decided this question adversely to defendant, and under the evidence adduced upon this trial they were fully warranted in so doing, as the evidence was ample to sustain the verdict of the jury and to support the judgment of conviction. Had the question of the corpus delicti been involved upon the trial of this case, many of the rulings here complained of should probably have been discussed. But, under the status of the evidence as disclosed, such errors as may have been committed by the court in its rulings upon the evidence could not have injuriously affected the substantial rights of defendant, who simply denied all connection with the possession or operation of the still. The statute expressly provides that a judgment of conviction must not be reversed, because of error in the record when the court is satisfied that no injury resulted therefrom to the defendant. Code 1907, § 6264. See, also, Supreme Court rule 45, 175 Ala. xxi (61 So. ix).

Let the judgment of conviction appealed from stand affirmed.

Affirmed.