Kilpatrick v. State, 6 Div. 88

• Decision Date: 09 August 1955
• Docket Number: 6 Div. 88
• Citation: 81 So.2d 926,38 Ala.App. 256
• Parties: Grady KILPATRICK v. STATE.
• Court: Alabama Court of Appeals

Page 926

81 So.2d 926

38 Ala.App. 256

Grady KILPATRICK v. STATE.

6 Div. 88.

Court of Appeals of Alabama.

Aug. 9, 1955.

Tweedy & Beach, Jasper, for appellant.

John Patterson, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Edmon L. Rinehart, Montgomery, of counsel, for the State.

The following charge was refused to defendant:

'9. The Court charges the jury that each of you is entitled to have his own conception of what constitutes a reasonable doubt; that before you can convict this defendant the evidence must be so strong that it convinces each of you beyond a reasonable doubt of the defendant's guilt, and if, after you have considered all the evidence in this case, a single member of this jury has a reasonable doubt of the defendant's guilt, you cannot find him guilty.'

HARWOOD, Presiding Judge.

This appellant has been convicted for the illegal possession of prohibited beverages.

The record below is voluminous, though virtually free of invoked rulings by the court.

Stripped of much of its repetition the evidence presented by the State tends to show that from about noon to about 5 p. m. five Walker County law enforcement officers secreted themselves on a slough opposite the fishing camp operated by appellant, the slough being estimated to be from 100 to 185 yards wide.

A ramp ran into the slough at the fishing camp. The appellant was observed to go onto the ramp, reach into the water and take up two cans that appeared to be beer cans. One of these he drank from and handed the other to a man identified as Argent. Later the appellant was seen taking two more cans from the water which he gave to two men in a boat. These men were later identified as being Sanford and House. These men were observed to drink from the cans, and throw them into the water.

About 5:00 p. m. the officers paddled across the slough, retrieving on the way two empty Miller High Life beer cans which were still floating on the water.

Going to the place where appellant had been seen taking the cans out of the water they found a carbide can submerged in the water. Upon pulling the carbide can out of the water they found it contained eleven cans of Miller High Life beer.

The appellant denied that he had any connection with the beer the officer pulled out of the water or that he knew it was there. He stated he had seen Argent, Sanford, and House that afternoon and had talked with them and had obtained for them a soft drink from his house, but no beer.

Argent, Sanford, and House also testified that they had obtained no beer from the appellant on the afternoon in question.

All of the above of course merely raised a question of fact solely within the province of the jury to determine. Clearly if the evidence presented by the State be believed by the jury under the...