Dunn v. State

PELHAM, J.

— There was no error in allowing the state to prove, against the defendant’s objection, that at the time he ordered the whisky (a part of which was found in his store or stand) he ordered 48 half pints.— Sadler v. State, 165 Ala. 109, 51 South. 564.

That portion of the court’s oral charge upon what constituted a prima facie case was a correct statement of the law. — Acts 1909, p. 81, § 12.

The excerpt from the oral charge of the court set out in the bill of exceptions, to which an exception was reserved, relating to the defendant’s testifying as a witness in his own behalf, includes the statement that “the defendant is a competent witness for himself;” and, while the other part of the statement objected to might be construed so as to be considered as an invasion of the province of the jury in weighing the evidence, the defendant did not reserve an exception to the latter portion alone and point out the infirmity by making specific objection to that part violating the rule, but reserved an exception to a part of the oral charge including as a part of the portion objected to, a statement not subject to criticism. The objection was therefore not well taken; for, unless the entire part of the charge to which the exception is taken is faulty as a Avhole, the exception fails. — Maxwell v. State, 3 Ala. App. 169, 57 South. 505; Lacey v. State, 154 Ala. 65, 45 South. 680.

There was sufficient evidence upon which the jury could find the defendant guilty of the charge, and the general charge fob the defendant was properly refused.

Conceding that the charge No. 2 was without any misleading tendency, the proposition of law embraced in it is covered by the charges given at the request of the defendant.

Charge No. 6 is not such a charge as the court can be put in error for refusing. It singles out and gives undue prominence to a part of the evidence, and is otherwise faulty. The correct propositions of law contained in it are covered by the given charges.

The argument that the judgment and sentence of the trial court was too severe is not open for our consideration, since the trial judge, in exercising the discretion reposed in him by law, did not exceed the authority-given Mm by law, and bis discretion, thus exercised, is not reviewable.

We find no error in the record, and the judgment of conviction will be affirmed.

Affirmed.