Payne v. State
| Decision Date | 10 November 1959 |
| Docket Number | 7 Div. 584 |
| Citation | 115 So.2d 670,40 Ala.App. 493 |
| Court | Alabama Court of Appeals |
| Parties | Gerald C. PAYNE v. STATE. |
Frank B. Embry, Pell City, for appellant.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The State has filed a motion to strike the record in this cause because the same was not filed with the clerk of this court within the time required by law.
Upon full consideration of this motion, we conclude it should be, and it is hereby denied.
This appellant has been adjudged guilty of possessing a still.
The evidence introduced by the State tended to show that two law enforcement officers, attracted by a light, located a still, or nearly complete still, in St. Clair County.
They secreted themselves 75 to 100 feet from the still and observed two men at the still. One was placing containers under the still, the other was on top pouring what appeared to be a bag of sugar in the tank. When this work was completed the men walked up a path within a few feet of the officers and were caught and arrested.
Proceeding to the still site the officers found a partially assembled still, with a vat of 800 gallon capacity already charged with mash.
Both officers testified that the articles they found were of a kind suitable for and generally used in the manufacture of alcoholic beverage.
This scene, the officers testified, was in the northern division of St. Clair County.
At the conclusion of the State's case the appellant moved to exclude the evidence and grant him his discharge on the grounds that no ownership nor possession of the still in the appellant had been proven, and that the still as found could not in its then condition produce whisky.
The motion was overruled.
The only evidence presented by the appellant was the testimony of several character witnesses who affirmed appellant's good reputation.
In his brief counsel for appellant asserts as error the action of the court in overruling appellant's motion for a new trial.
One ground of the motion asserted error in the refusal of appellant's requested charge affirmative in nature.
The basis of counsel's argument in this connection is that the charge should have been given because of the State's failure to prove venue.
This argument is without merit.
In the first place the officers testified they arrested appellant within 75 to 100 feet of the still at which they observed him and his companion working, and that the place of...
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Harris v. State
...67 So.2d 284. Place is not a question of criminal pleading but proof. 4 Code 1940, T. 15, § 238; Circuit Court Rule 35; Payne v. State, 40 Ala.App. 493, 115 So.2d 670. Obedience to the statutory directions to leave out of an indictment for robbery any detail of time other than 'before the f......
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Moore v. City of Eufaula, 4 Div. 90
...1940, as recompiled 1958; Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. denied, 266 Ala. 699, 98 So.2d 65; Payne v. State, 40 Ala.App. 493, 115 So.2d 670." The 1907 case of Dupree v. State, 148 Ala. 620, 42 So. 1004, states in pertinent "Defendant's counsel insist that charge 1 s......
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Eagen v. State, 3 Div. 262
...not be considered on appeal. Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. den. 266 Ala. 699, 98 So.2d 65; Payne v. State, 40 Ala.App. 493, 115 So.2d 670; Circuit and Inferior Court Rules, Rule 35, Code 1940, Tit. 7, Appendix. Certainly, in a coram nobis pro- ceeding, one cannot ......
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