Arrington v. State
| Decision Date | 24 March 1931 |
| Docket Number | 4 Div. 727. |
| Citation | 24 Ala.App. 233,133 So. 592 |
| Parties | ARRINGTON v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Barbour County; F. W. Hare, Judge.
Willie E. Arrington was convicted of unlawfully possessing a still and he appeals.
Reversed and remanded.
Sollie & Sollie, of Ozark, and Guy W. Winn, of Clayton, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
There was much testimony and many objections and exceptions relating to the location of a whisky still, some three-quarters of a mile from defendant's house, in a wood. All of this testimony related to the still, its location and its possession. There may have been some technical objection to some of the preliminary questions asked state's witnesses leading up to their knowledge regarding the whisky still. If so, none of them could possibly have injuriously affected defendant's substantial rights. All of the testimony of these state's witnesses related directly to the still and its location, and as such was relevant and admissible.
Witnesses for the state qualified sufficiently as to knowledge of stills, and testified that this still was suitable to be used in the manufacture of whisky. The court committed no error in the admission of this testimony.
The testimony tends to prove that the state's witnesses found this still on a certain Tuesday; that they watched the still constantly from that time until the next Friday morning; that on Thursday evening defendant was seen near the still; that he lifted up the lid to one of the vats containing beer; that "He did not do anything to it, just looked at it." This witness further testified that, when he saw defendant looking at the beer, he just observed defendant a few minutes and went away, and, when witness returned in about an hour defendant was gone, and was never seen again at or near the still. The above evidence would not be sufficient within itself to sustain a conviction, and, if this were all, the defendant would be entitled to the general charge. Biddle v. State, 19 Ala. App. 563, 99 So. 59.
The state, however, introduced two witnesses, Edgar Frazier and Henry Thorn, who were found at the still on Friday morning when the still was destroyed. These parties were arrested and stand indicted charged with the possession of this still. They testify that the still was Mr. Arrington's (the defendant), and that they were sent to the still by Arrington (defendant) merely to "watch." It is admitted that both Frazier and Thorn were so connected with the possession of the still as to make them accomplices. It is insisted on the part of defendant that, under section 5635, Code 1923, he cannot be convicted on the uncorroborated testimony of Frazier and Thorn. This, of course, is the law, and, unless independent corroboration can be found in the testimony, the defendant cannot be convicted. The corroborative evidence tending to connect the defendant is to be found in the fact that the defendant was seen at the still on Thursday evening looking into one of the vats containing the beer designed to be used in distilling whisky. The still was three-quarters of a mile from defendant's house, in a wood. What was his business there? Was it to ascertain if the beer was ready for distillation? Did he find it so and instruct Frazier and Thorn to go there Friday morning to aid in manufacturing the whisky? The fact of defendant's being at the still, while not sufficient to convict, was a circumstance tending to corroborate the testimony of the witnesses Frazier and Thorn. The weight of this testimony was for the jury. Malachi v. State, 89 Ala. 134, 8 So. 104; Horn v. State, 15 Ala. App. 213, 72 So. 768; Segars v. State, 19 Ala. App. 407, 97 So. 747.
The defendant requested the court in writing to give the following charge: "If upon all the evidence the jury believe that the defendant is not probably guilty they must acquit him." As was pointed out by this court in Fox v. State, 17 Ala. App. 559, 87 So. 621, a similar charge omitting a requirement for a consideration of the evidence was held to be good and its refusal reversible error in many cases decided by our Supreme Court and collated in the Fox Case, supra. We further pointed out in the Fox Case that this court had held the charge bad in Buckhanon v. State, 12 Ala. App. 36, 67 So. 718, for that it pretermitted a consideration of the evidence, for which holding authority was cited, and for the further reason that the probability of innocence must be reasonable. For this last no authority was cited, and we are sure none could be found, for the reason that a "probability of innocence" is a stronger term and places a greater burden on the...
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...from Lindhorst v. State, 346 So.2d 11 (Ala.Cr.App.), cert. denied, 346 So.2d 18 (Ala.1977), upon the facts. In Arrington v. State, 24 Ala.App. 233, 133 So. 592 (1931), it was held that evidence that the defendant was at a still on the evening before his accomplices were found thereat was su......
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