Emerson v. State, 6 Div. 721.

• Decision Date: 25 February 1941
• Docket Number: 6 Div. 721.
• Citation: 30 Ala.App. 89,1 So.2d 604
• Parties: EMERSON v. STATE.
• Court: Alabama Court of Appeals

1 So.2d 604

30 Ala.App. 89

EMERSON v. STATE.

6 Div. 721.

Alabama Court of Appeals

February 25, 1941

Rehearing Denied March 18, 1941.

DeGraffenried & McDuffie, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

SIMPSON Judge.

Appellant was charged with the illegal possession of spirituous, vinous or malt liquors. Agents of the Alcoholic Beverage Control Board raided his premises in Tuscaloosa County and seized nineteen and one half cases of assorted whiskey and about thirty cans of beer. He was originally tried in the county court of said county and upon conviction appealed to the circuit court, was there again convicted, and from that judgment appealed to this court.

Only two propositions of law are urged here for a reversal of the judgment below. It is contended by appellant that he was entitled to have given the general affirmative charge, duly requested in writing, and that in its refusal the court committed reversible error. The other contention for error is succinctly stated in appellant's brief: "After the jury had been instructed in this case the Court on its own accord decided to charge the jury further. The Court charged the jury as follows: 'Gentlemen of the Jury, the Court in some way overlooked instructing the jury that you had a right to assess a fine against the defendant not exceeding $500.00 and I will have to let you go back to your jury room and fix the fine.' "

It is insisted that the record presents substantial and prejudicial error, in the above quoted instruction to the jury, first because it is not made to appear that it was delivered to the jury in open court in the presence of the appellant, and, second, because (quoting from appellant's brief) "it assumed that the jury would find the appellant guilty."

This court, sitting en banc, has read and carefully considered each of the insistences of error relied upon for a reversal of the judgment. We think that the general affirmative charge was properly refused and that error is not made to appear as regards the instruction to the jury quoted hereinabove.

The rule has many times been stated as to the giving of the general affirmative charge for the accused. It cannot be given when the evidence affords an inference adverse to him. In such a case the question must be submitted to the jury for decision. Hargrove v. State, 147 Ala. 97, 41 So 972, 119 Am.St.Rep. 60, 10 Ann.Cas. 1126; Suttles v. State, 15 Ala.App. 582, 74 So. 400. We have accorded careful study to the argument and authorities submitted by able counsel for appellant, but are persuaded that as to the facts of this case they are not apposite. From the evidence submitted, and the inferences reasonably to be...