Duncan v. State

• Decision Date: 01 June 1926
• Docket Number: 7 Div. 159
• Citation: 109 So. 554,21 Ala.App. 524
• Parties: DUNCAN v. STATE.
• Court: Alabama Court of Appeals

109 So. 554

21 Ala.App. 524

DUNCAN v. STATE.

7 Div. 159

Court of Appeals of Alabama

June 1, 1926

Rehearing Denied Sept. 7, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

John Duncan was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

E.O McCord & Son, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.

SAMFORD J.

There are 46 assignments of error in this record, which is on appeal from a judgment convicting the defendant of unlawfully possessing whisky.

After the whole question had been fought over and many exceptions reserved, the defendant cured any possible error which may have been committed by the trial court by admitting that, on the occasion he was charged with being in possession of liquor, he "took a drink out of a pint bottle," and admitted it to have been a part of the whisky in the automobile at the time charged in the affidavit. Under Harbin v. State, 210 Ala. 55, 97 So. 426; Honeycutt v. State, 20 Ala.App. 485, 103 So. 90; Wilson v Orr, 210 Ala. 93, 97 So. 133; Gilchrist v State, 20 Ala.App. 233, 101 So. 90 6; Bynum v. State, 20 Ala.App. 619, 104 So. 834; Vaughn v. State (Ala.App.) 107 So. 797--the testimony of defendant was an admission of the charge for which he was tried, which rendered all prior errors harmless.

There is no error prejudicial to defendant, and the judgment is affirmed

Affirmed.

On Rehearing.

Application is made for a rehearing in this case assigning three grounds in which it is claimed this court erred in affirming the judgment of conviction. The brief accompanying the application ignores the first two grounds, and insistence is made only to the third ground, to wit:

"This court erred in holding that defendant cured any possible error in the record by admitting he drank out of the pint bottle."

Supreme Court rule 38 requires that all applications for rehearing must be filed with the clerk of the court, accompanied by a brief for the applicant and a certificate of counsel that a copy of the brief has been delivered to opposing counsel, etc.

As to the third assignment, supra, the defendant testified without objection that he took a drink out of the bottle "a little piece" out of Jacksonville. How far out does not appear, but evidently on the way to Gadsden in Etowah county, where the arrest took place. There was no objection to this evidence and no request for the affirmative charge and no...