Ganus v. State

• Decision Date: 29 May 1923
• Docket Number: 6 Div. 170.
• Citation: 97 So. 117,19 Ala.App. 286
• Parties: GANUS v. STATE.
• Court: Alabama Court of Appeals

97 So. 117

19 Ala.App. 286

GANUS v. STATE.

6 Div. 170.

Court of Appeals of Alabama

May 29, 1923

Rehearing Denied June 26, 1923.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

J. Pink Ganus was convicted of violating the prohibition law, and appeals. Affirmed.

F. F Windham, of Tuscaloosa, for appellant.

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

SAMFORD J.

We have examined the various exceptions reserved to the rulings of the trial court, without limitation by reason of appellant's brief; but a detailed discussion, other than herein appears, will not be necessary.

During the argument of the solicitor a colloquy occurred between the solicitor and one of defendant's counsel over this remark of the solicitor, "I say it is cowardly to make an innuendo, and not back it up." Motion was made by defendant to exclude this remark, and that the court declare a mistrial. The court excluded that part of the remark "I say it is cowardly," and instructed the jury not to consider it, but refused to order a mistrial. As has been frequently said by this court, matters of this kind must in a large degree be left to the discretion of the trial judge, and appellate courts are reluctant to declare error, unless it clearly appears that, by reason of the rulings and the "general atmosphere of the trial," caused by an unfair argument, or other facts connected therewith, the defendant was denied a fair trial, to which he is entitled under the Constitution. This court, in Mitchell's Case, 18 Ala. App. 471, 93 So. 46, Windom's Case, 18 Ala. App. 430, 93 So. 79, and Bean's Case, 18 Ala. App. 281, 91 So. 499, reviewing the many rulings on this subject, has tried to make clear the limitations on arguments and the attitude of appellate courts as to exceptions reserved thereto. The rulings of the court in the instant case are free from error.

After proof of the proper predicate, state's witness was allowed to testify as to admissions of defendant, at the time and while he was actually engaged in pouring the manufactured product of the still into a keg. Aside from the predicate which was clearly proven, this evidence would have been admissible as part of the res gestæ. Holyfield v. State, 17 Ala. App. 162, 82 So. 652; Jones v. State, 17 Ala. App. 394, 85 So. 830. There being evidence tending to show a joint ownership and possession of the still and its joint operation by defendant and two other...