Forsythe v. State

• Decision Date: 20 May 1924
• Docket Number: 8 Div. 144.
• Citation: Forsythe v. State, 19 Ala.App. 669, 100 So. 198 (Ala. App. 1924)
• Parties: FORSYTHE v. STATE.
• Court: Alabama Court of Appeals

100 So. 198

19 Ala.App. 669

FORSYTHE v. STATE.

8 Div. 144.

Court of Appeals of Alabama

May 20, 1924

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Willie Forsythe was convicted of distilling, and appeals. Affirmed.

Bradshaw & Barnett, of Florence, for appellant.

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

BRICKEN P.J.

The verdict of the jury found the defendant guilty as charged in the first count of the indictment. This count charged that he did distill, make, or manufacture, alcoholic, spirituous, or malt liquors, etc., contrary to law.

No rulings of the court were invoked upon the testimony in this case, hence no exceptions were reserved in this connection.

Charges 3 and 4 refused to the defendant were properly refused.

At the conclusion of the court's oral charge, the transcript shows the following:

"The defendant excepts to that part of the charge to each and every word of the charge giving the definition of 'aid and abet."'

Whereupon through an abundance of caution the court stated:

"Gentlemen of the jury, I withdraw the definition that I gave you to 'aid and abet,' and give you this as the law on the question of aid and abet. The words 'aid and abet' comprehend all assistance rendered by act, word encouragement, support, or presence, either actual or constructive, to render assistance should it become necessary."

Appellant here complains that this last statement is also erroneous but concedes the record fails to disclose that an exception was reserved thereto.

The court had the right, in fact it was its imperative duty, to withdraw any erroneous statement of the law given to the jury in his oral charge. Whether such statement was due to inadvertence, mistake, or otherwise, and error if any may be cured by a prompt withdrawal or retraction of the objectionable statement, or by an instruction to the jury to disregard such statement. Null v. State, 16 Ala. App. 542, 79 So. 678.

We pretermit the question of the correctness of the final definition of "aid and abet," as given by the court to the jury. The question is not presented. An exception is necessary for a review of an oral charge. Ex parte State ex rel., etc., Montgomery v. State, 204 Ala. 389, 85 So 785. Moreover, the exception reserved to the first statement of the court does not appear to meet the required rule; it was descriptive rather than specific....