Powell v. State
| Decision Date | 19 May 1925 |
| Docket Number | 6 Div. 609 |
| Citation | 104 So. 551,20 Ala.App. 606 |
| Parties | POWELL v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.
John W.A. Powell was convicted of possessing a still, and he appeals. Reversed and remanded.
Gray & Powell, of Jasper, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The defendant was convicted of unlawfully having in his possession a still, etc., to be used for the purpose of manufacturing prohibited liquors, or beverages, and appeals. The evidence for the state was substantially as follows:
Four officers went to the home of defendant, on a Sunday afternoon, while he was away, and made a search of the dwelling house and premises. There were there present, at the time, besides the officers, defendant's wife and children, and perhaps some others. Nothing of an incriminatory nature was found in the dwelling house. Two hundred steps (which steps are described as denoting slightly less than three feet) from the back door of defendant's home, over in the middle of his field, the officers found a "worm" and "a cap," denominated by them "a part of a still." Near defendant's spring from which he and his family used water for drinking and domestic purposes, were found three "furnace places," so allowed, without objection, to be described by the officers. Inside defendant's field, and according to one of the officers 53 or 55 steps from defendant's back door, and 175 yards from where the "part of a still" was located, was found a 10-gallon keg of corn whisky. Some distance, not given, from defendant's house some receptacle, size not given, was found The furnace place showed that it had been used. Inside defendant's smokehouse was found two or three 100-pound sacks of sugar, one sack of meal, and several fruit jars. It was shown that "the part of a still" found was "what they use in manufacturing liquor."
The defendant denied any knowledge of, or ownership in, or connection with any of the things found above, except the sugar, meal, and fruit jars. It was shown that he lived 14 1/2 miles from Parish, the nearest railroad station, and he testified that the meal and sugar were for ordinary family consumption, and the fruit jars for use in canning fruit. He denied owning or possessing any still or parts thereof. Defendant's three children testified that the "furnace places" had been dug or made by them, in their play, they stating that they had a boiler made of an empty 10-gallon gasoline tank, and built the furnaces for the purpose of generating steam, etc.
The above was substantially all the testimony in the case.
Under the authority of Ex parte State ex rel. Davis, Atty.Gen Wilson v. State, 211 Ala. 574, 100 So. 917, it would seem, and we so hold, that the evidence on behalf of the state above made a prima facie case of guilt against the defendant, and the general affirmative charge in his behalf was therefore properly refused.
Inasmuch, however, as no motion to set aside the verdict was made in the court below, it is not incumbent or proper that we here decide whether the presumption of innocence which, under the law, attended the accused upon the trial until his guilt had been proven to the satisfaction of the jury beyond a reasonable doubt, was sufficiently rebutted by such prima facie case, as proven. Wilson v. State, 20 Ala.App. 62, 100 So. 914.
The witness Guy V. O'Rear, over defendant's timely objection, was asked the following question by the solicitor:
"Was that such whisky (referring to the whisky found above) as is manufactured by the kind of a still that you found there or parts of the still?"
The question clearly called for the conclusion or opinion of the witness, and the court erred in overruling defendant's objection thereto. Likewise there was error in overruling defendant's motion to exclude the answer to said question.
The same witness was asked, by the solicitor, this question:
"I will ask you if you found tracks from the furnace place to where you found the worm?"
Defendant's timely objection thereto should have been sustained, and his motion to exclude the answer, viz., "Yes, sir," should have been granted. While it might have been that evidence of human adult tracks at the place mentioned would be admissible as a circumstance tending to connect defendant with the crime charged, yet the question, as framed, was objectionable as failing to specify such tracks. The question and answer would have done the same harm to the defendant, in the form stated, had they had reference to cow tracks--as, indeed, from the record before us, it cannot be said they did not.
Over the timely objection of the defendant to each question the solicitor was allowed to ask the witness Appling these two questions, one following the other, with no answer between:
This was error. The court has repeatedly said, and now repeats, that witnesses should be required to testify to facts, and leave the juries to draw conclusions.
After the witness Self had been allowed, without objection, to testify to finding some "furnace places," the solicitor was allowed, over due and timely objection, to ask the witness if they were "still places," which question the witness answered in the affirmative. Defendant's motion to exclude the witness' answer was overruled. The trial court committed error in overruling both the objection to the question and the motion to exclude the answer. Boy Tyre, alias Paul Tyre v. State (Ala.App.) 103 So. 91.
During the cross-examination by the defendant's counsel of the state's witness, Self, and after the said witness had testified...
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Patterson v. State
...atmosphere of the case was that of race prejudice, and the court exhibited impatience against appellant's counsel. Powell v. State, 20 Ala.App. 606, 104 So. 551. Burns v. State, 226 Ala. 117, 145 So. 436, and Daggett v. Boomer, 210 Ala. 673, 99 So. 181, the remark of the court reflected on ......
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Chastain v. State, 7 Div. 113
...Refused charge 32 was not applicable. The guilt of the defendant did not depend upon the testimony of a single witness. Powell v. State, 20 Ala.App. 606, 104 So. 551; Wilson v. State, 34 Ala.App. 219, 39 So.2d Charge 23 was amply covered by other charges given at the request of defendant. C......
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Timmons v. State, 3 Div. 84
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