Gilbert v. State

• Decision Date: 07 February 1922
• Docket Number: 7 Div. 731.
• Citation: 92 So. 522,18 Ala.App. 393
• Parties: GILBERT v. STATE.
• Court: Alabama Court of Appeals

92 So. 522

18 Ala.App. 393

GILBERT v. STATE.

7 Div. 731.

Court of Appeals of Alabama

February 7, 1922

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Andrew Gilbert was convicted of violating the prohibition laws, and he appeals. Affirmed.

Isbell Scott & Downer and Appleton & Presley, all of Fort Payne, for appellant.

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

BRICKEN P.J.

The indictment contained two counts. Count 1 charged (omitting the formal parts) that the defendant manufactured alcoholic spirituous, malted, or mixed liquors or beverages, a part of which was alcohol. And the second count charged that he manufactured, sold, gave away, or had in his possession a still, apparatus, appliance, or some device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, etc.

There was a general verdict of guilty, and the judgment of conviction followed accordingly.

The defendant moved the court to continue this cause on the grounds that the jurors had been present in the courtroom during the trial of the case of State v. B. F. Norris, in which the defendant was on trial for the same offense as this defendant, and in which the testimony was the same as in this case. The court overruled this motion for a continuance, and defendant excepted. It has been many times held that continuances are within the discretion of the trial court and its action in granting or refusing a continuance will not be reviewed, on appeal, unless a gross abuse of the discretion is shown. White v. State, 86 Ala. 69, 5 So. 674. We are of the opinion that no such abuse of the court's discretion is here shown; that the fact that the jurors were present in court when the Norris Case was tried does not afford a revisable ground for refusing to continue the case. Stover v. State, 204 Ala. 311, 85 So. 393.

It is insisted that the defendant was entitled to the affirmative charge on the grounds that the only evidence against him, and upon which the state necessarily relied for a conviction, was the evidence of admitted accomplices J. Truss and Joe White. And it is insisted that there was no other evidence offered upon the trial of this case tending to connect the defendant with the commission of the offense.

This defendant was charged with and convicted of a felony. The statute provides that a conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense, or the circumstances thereof, is not sufficient.

The important question presented by the record and insisted upon by counsel for appellant presents for our consideration and review the inquiry whether the testimony of the accomplices named, implicating the defendant, was sufficiently corroborated to render the submission of guilt vel non of the defendant to the jury. A careful consideration of all the evidence offered by the state on the trial of this case convinces us that this contention of appellant's counsel cannot be sustained, and we shall briefly set out our reasons.

The testimony of state witnesses Truss and White (accomplices) was direct and to the point that the defendant was guilty of actually distilling or manufacturing the prohibited liquors. Upon this proposition there can be no dispute or division of opinion. So the question remains, Was the testimony of the accomplices corroborated by other evidence tending to connect the defendant with of commission of the offense? In this connection we find that by other testimony it appears without dispute that this defendant was present at the still at the time and place testified to by the alleged accomplices. His close proximity thereto is without dispute, and thus the opportunity to do the acts complained of is unequivocally established. Further it is shown by testimony, other than that of the alleged accomplices, that at or about the time of the alleged unlawful distilling of prohibited liquors by these men the defendant purchased large and unusual quantities of sugar, and the undisputed testimony shows that large quantities of sugar were used in the operation of the still complained of. There is also testimony tending to show that this defendant had undertaken to buy the crop, etc belonging to the alleged accomplice Truss, and had endeavored to induce him to leave the state in order to...