Cunningham v. State, 1 Div. 783

• Decision Date: 06 January 1959
• Docket Number: 1 Div. 783
• Citation: 108 So.2d 192,40 Ala.App. 114
• Parties: Mallard CUNNINGHAM v. STATE.
• Court: Alabama Court of Appeals

Page 192

108 So.2d 192

40 Ala.App. 114

Mallard CUNNINGHAM v. STATE.

1 Div. 783.

Court of Appeals of Alabama.

Jan. 6, 1959.

Windell C. Owens, Monroeville, for appellant.

John Patterson, Atty. Gen., and Robt. C. Dillon, Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

This appellant stands convicted of possession of prohibited beverages.

The evidence presented by the State established the appellant's guilt, not only beyond a reasonable doubt, but beyond all doubt.

The appellant offered no evidence in the trial below.

However, the court instructed the jury as follows:

'And I further charge you that if you believe the evidence in this case it will be your duty to bring in a verdict of guilty as charged, and I have prepared here a verdict for you in the event you believe the evidence, which reads as follows: 'we the jury find the defendant guilty as charged and assess a fine of blank dollars.' Any amount from fifty dollars up to five hundred dollars, you cannot fine him less than fifty nor more than five hundred dollars.'

To this charge the appellant reserved an exception as follows:

'I want to reserve my exception to giving the oral charge where the Court said the jury could assess a fine of not less than fifty dollars nor more than five hundred dollars.'

It is sufficient that the exception substantially recite the instruction to the extent of informing the court of the portion of the instruction excepted to. Kelley v. State, 226 Ala. 80, 145 So. 816; Brewington v. State, 19 Ala.App. 409, 97 So. 763; Brown v. State, 17 Ala.App. 30, 81 So. 366; Ex parte Cowart, 201 Ala. 55, 77 So. 349.

The exception was in our opinion sufficient to direct the lower court's attention to that portion of the court's instruction to which appellant was excepting. Particularly is this true in view of the verdict prepared by the court for the jury.

Pinkerton v. State, 246 Ala. 540, 22 So.2d 113, presented a point on all fours with the point now considered in this case.

In the Pinkerton case, supra, the late Chief Justice Gardner wrote the opinion for the court and held that an instruction such as the one given in this case was an erroneous statement of law as distinguished from a misleading statement, and not subject to an explanatory charge.

It is true that Section 99, Title 29, Code of Alabama, provides that the penalty for violation of Section 98, Title 29 (the possession statute) is punishable by a fine of not less than $50 and not more than $500, to which, at the discretion of the judge trying the case, may be added imprisonment in the county jail, or at hard labor...