Morrison v. State

BRICKEN, P. J.

The corpus delicti of the offense charged in the indictment was fully proven without dispute or conflict. The, identity of this appellant as being one of the operators of the still in question is the principal inquiry in this case. On this question all four witnesses for the state testified that this appellant was one of the men engaged in the operation of the still, that he ran away at the approach of the “raiding” party, but was arrested the next night at the home of one Davis,- where appellant was living.

Appellant, as a defense, set up an alibi., He and several other witnesses testified he was not at the still on .the night in question, but that at the time of the raid he was five or six miles away, and was at the Davis home, where he lived. This conflict in the evidence presented, of course, a question for the jury to determine. In other words, this case in the court below rested entirely upon this sole question of fact.

There were large quantities of whisky at the still, and, so far as this appellant.is concerned, the question as to whether the “beer,” also in large quantities, contained alcohol, was wholly immaterial. Courts take judicial knowledge of the fact that whisky is a prohibited liquor. Thus that portion of the insistence of appellant as to the crime itself need not be discussed.

The argument of the solicitor to which objections were interposed was excluded by the court upon motion of defendant. The court having ruled with defendant, he cannot be heard to complain, as it affirmatively appears no injurious effect resulted to the accused. Moreover, the remarks of the solicitor were but expressions of his opinions based upon his version of the testimony which with proper explanations may have been left in argument.

Such of the refused charges as properly stated the law were fairly and substantially covered by the oral charge and those given at the request of defendant. The court was therefore under no duty to reiterate charges already given.

The so-called exception to the court’s oral charge presents nothing for review. The exception was abortive, as no attempt was made to comply with the. required rules. Reed v. State, 18 Ala. App. 371, 92 So. 513.

As hereinabove stated, this case presented a question of fact only for the jury to determine. It was the province of the jury to accord such weight or probative force to the evidence with which it was entitled. In the opinion of this court, the evidence adduced upon the trial was ample to support the verdict of the jury, and to sustain the judgment of conviction pronounced and entered. Grimes v. State, 24 Ala. App. 378, 135 So. 652.

Affirmed.