Davis v. State

• Decision Date: 22 January 1924
• Docket Number: 6 Div. 311.
• Citation: 98 So. 912,19 Ala.App. 551
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

98 So. 912

19 Ala.App. 551

DAVIS v. STATE.

6 Div. 311.

Court of Appeals of Alabama

January 22, 1924

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Roy Davis was convicted of manufacturing prohibited liquors, and appeals. Affirmed.

W. S McNeil, of Fayette, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The indictment contained two counts. The first count charged the manufacture of prohibited liquors; the second count charged the possession of a still. The defendant was convicted under the first count.

The evidence for the state tended to show that the defendant and others were found operating a still. The defendant ran off and was afterwards arrested.

The defense was an alibi.

There was evidence of the good character of the defendant.

It was permissible for the state to ask a state's witness if he found the defendant at a still in 1922, that being the time the prosecution was laid, and the still inquired about being the identical still for the possession of which the defendant was on trial.

After the defendant ran away from the still the raiding officers found a coat there which was afterwards claimed by the defendant. It was competent for the state to show that there was a check in one of the pockets on which defendant's name was written, and that there were $5 or $6 in the pocket and that the defendant claimed the coat, the check, and the money for the purpose of identifying the coat as the property of the defendant, and as tending to explain the defendant's admission that the coat was his.

Charge A requested by defendant was properly refused. It was the general charge for defendant as to count 1, and there was ample evidence to convict the defendant of manufacturing prohibited liquors. Fuller v. State, 97 Ala. 27, 12 So. 392.

Charge B was properly refused. It was the general charge for defendant as to the second count. There was evidence upon which the court was justified in submitting to the jury the question of the guilt vel non of the defendant of having in his possession a still. But the defendant cannot complain of the refusal to give the charge because he was convicted under the first count, and this was an acquittal of the charge contained in the second count.

Charge 1 is faulty. A charge which instructs the jury that, if the evidence is susceptible of two constructions, one favorable and the other unfavorable to the defendant, they must adopt the one favorable to him, invades the province of the jury. Fonville v. State, 91 Ala. 39, 8 So. 688; Smith v. State, 88 Ala. 23, 7 So. 103; Johnson v State, 102 Ala. 1, 16 So. 99.

Charge 2 is faulty. It invades the province of the jury, and singles out part of the evidence. Authorities cited above and Fountain v. State, 98 Ala. 40, 13 So. 492.

We cannot approve charge 4 in the language in which it was requested. The law of this state is that the legal presumption of innocence is to be regarded by the jury in every case...