Bufkins v. State

• Decision Date: 16 December 1924
• Docket Number: 1 Div. 582
• Citation: 20 Ala.App. 457,103 So. 902
• Parties: BUFKINS v. STATE.
• Court: Alabama Court of Appeals

103 So. 902

20 Ala.App. 457

BUFKINS v. STATE.

1 Div. 582

Court of Appeals of Alabama

December 16, 1924

Rehearing Denied Jan. 20, 1925

Appeal from Circuit Court, Mobile County; N.D. Denson, Judge.

Otis Bufkins was convicted of manufacturing prohibited liquors and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Bufkins, 103 So. 906.

McMillan & Grove, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER, J.

The appellant was convicted of manufacturing prohibited liquors.

The evidence for the state tended to show that one Joe Stringfellow, a deputy sheriff, together with Gillespie and Cox, federal agents, found the defendant operating a still about 4 1/2 miles from Wilmer, in Mobile county; that they found a complete whisky still of a hundred gallons capacity sitting on a furnace and in operation, whisky running from it, and there was also a five-gallon keg of whisky and about nine fifty-gallon barrels of beer, they also found a one hundred-pound sack about two-thirds full of sugar. The witness Stringfellow also testified that the place was in Mobile county; that the defendant and Frank, Lester and Vaudie Dossett were there; that the defendant put water which he got in a bucket from a little branch in the cooling barrel; that defendant's clothes had beer slop on them that when Cox came up the defendant tried to get over the fence. Witness for the state testified that the Mississippi line was about a quarter of a mile from the still, and that the still was in Alabama. The witness testified further "that he went with the surveyor; that witness always knew the line was there, but not exactly; that he knew the still was in Alabama by reason of the survey; that he knew where it is; that he was there when the survey was made; that he was born within about 4 1/2 miles of that place and that he knew where the state line was; that he always knew it was in Alabama." Witness stated further "that he didn't make the survey; that the exact point of the still is based on the survey that Mr. Durant made, and without that survey he would not know exactly, but he knows it was in Alabama; that witness was with Mr. Durant when he surveyed the exact location that Mr. Durant is the one who made the survey and witness' testimony as to the exact location of the state line is based on what Mr. Durant told him, that the still was about a quarter of a mile from the line."

The defendant's evidence tended to show that the still was in Mississippi; that Frank Dossett put up the still and was operating it; that the defendant had been there only about 10 minutes when the officers came; that the defendant did not own or have any interest in the still, or any connection whatever with its operation.

The location of the state line did not necessarily call for expert testimony. The witness Stringfellow testified that he knew all the time that the location of the still was in Alabama. He also testified that it was in Mobile county. Where a witness is familiar with the location of a place he may testify to that fact, and in what county and state it is located. McDonald v. Wood, 118 Ala. 589, 24 So. 86.

If on cross-examination it developed that the witness' knowledge of the exact location of the line was based on what a surveyor told him, and if he knew no more of the true location of the line than the information given him by the surveyor, such information would be hearsay merely, and the defendant should move to exclude such testimony. No such motion was made here. McDonald v. Wood, supra.

Proof of venue is jurisdictional, and without such proof a conviction cannot be sustained. Code 1907, § 7140; Randolph v. State, 100 Ala. 139, 14 So. 792.

Where the evidence tends to show the commission of the crime within the jurisdiction of the court, venue becomes a question of fact for the jury. Britton v. State, 15 Ala.App 584, 74 So. 721; Pounds v. State, 15 Ala.App. 223, 73 So. 127; Powell v. State, 5 Ala.App. 75, 59 So. 530.

The evidence of the witness Stringfellow was sufficient to prove venue, if believed by the jury beyond a reasonable doubt.

Defendant's counsel asked defendant's witness Frank Dossett. "Did Bufkins have anything to do with that still?" Objection by the state was sustained and defendant excepted. If there was error in sustaining objection to the question, such error was cured by the subsequent testimony of the witness that the defendant had nothing to do with the still.

The defendant propounded to Lester Dossett, a witness for defendant, the following question, "Was defendant Bufkins arrested there that morning?" Objection was sustained and the defendant excepted. The court was not advised what the defendant intended or expected to disclose through an answer to this question. The state witness Stringfellow had testified that he arrested the defendant there. For aught the court knew the answer to the question might have been in the affirmative. If so, this evidence was already before the court. If the defendant proposed to prove the negative, the court should have been informed of that fact. The court committed no error in declining to allow the question. 4 Mich.Dig. p. 294, § 437.

It is not permissible to corroborate a witness by showing that he testified in the same manner on a former trial. Bush v. State, 211 Ala. 1, 100 So. 312; Long v. Whit, 197 Ala. 271, 72 So. 529; Jones v. State, 107 Ala. 96, 18 So. 237; McKelton v. State, 86 Ala. 594, 6 So. 301; Nichols v. Stewart, 20 Ala. 358.

Refused charges A and 1 were fairly and substantially covered by the oral charge of the court. There is a statutory enactment in Alabama and the rule has long been established by an unbroken line of judicial authority that the refusal to give a requested instruction, even though it states the law correctly, does not constitute reversible error, if it is fairly and substantially covered by the instructions given. Acts 1915, p. 815; Tucker v. State, 202 Ala. 5, 79 So. 303; Hardley v. State, 202 Ala. 24, 79 So. 362; Caldwell v. State, 203 Ala. 412, 84 So. 272; Carter v. State, 205 Ala. 460, 88 So. 571; Vann v. State, 207 Ala. 152, 92 So. 182; Peagler v. State, 207 Ala. 586, 93 So. 536.

The affirmative charge for the defendant was properly refused as there was sufficient evidence upon which to predicate a verdict of guilty.

The jury, after deliberating for several hours, returned to the court and the foreman reported that the jury was unable to agree upon a verdict. The court then further instructed the jury orally, that they were a deliberative body; that he did not know how they stood and did not ask to know, but that they were a deliberative body and that if the majority of them were of one opinion, the jury might take that fact into consideration in their deliberations. The defendant reserved exception to that portion of the oral instructions in which the court stated to the jury that, if a majority of them were of one opinion, the jury might take that fact into consideration in their deliberations. In determining whether the oral instruction excepted to should work a reversal of the case, the following considerations arise: (1) Did the instruction tend to coerce a verdict? (2) Did it invade the province of the jury?

This case presents no question of improper interview with the jury as was involved in the Holladay Case (Ala.App.) 101 So. 86, and the cases of Driver v. Pate, 16 Ala.App. 418, 78 So. 412, and Kansas City, M. & B.R.R. Co. v. Phillips, 98 Ala. 159, 13 So. 65. Nor do the facts bring it within the rule laid down in the Gidley Case, 19 Ala.App. 113, 95 So. 330. In the Meadows Case, 182 Ala. 51, 62 So. 737, Ann.Cas.1915D, 663, "Gentlemen, return to your room and resume your deliberations, and don't come back any more with anything like that. While I am sure that you did not mean it, yet such is absolutely in contempt of court."

In about an hour the jury returned a verdict of guilty, and saying that the defendant should suffer death. The court there said:

"The jury may have understood the trial judge, in his remarks to them when they brought in the paper writing, to say in effect: 'Go back to your jury room. It is a contempt of this court for a jury not to be able to agree upon a verdict. Don't come back into this court without a verdict.' "

And the Supreme Court there quoted with approval the following:

"There should be nothing in the intercourse of the trial judge with the jury having the least appearance of duress or coercion."

See also, Phoenix Ins. Co. v. Moog, 81 Ala. 343, 1 So. 115; De Jarnette v. Cox, 128 Ala. 518, 29 So. 618; Swallow v. State, 20 Ala. 30. The court held in the Meadows Case that the course pursued...