O'Rear v. State, 6 Div. 14

• Decision Date: 16 February 1937
• Docket Number: 6 Div. 14
• Citation: 27 Ala.App. 371,172 So. 674
• Parties: O'REAR v. STATE.
• Court: Alabama Court of Appeals

172 So. 674

27 Ala.App. 371

O'REAR v. STATE.

6 Div. 14

Court of Appeals of Alabama

February 16, 1937

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Belton O'Rear was convicted in the county court and in the circuit court of violating the prohibition law, and he appeals.

Affirmed.

B.B. O'Rear and B.G. Wilson, both of Jasper, for appellant.

A.A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

BRICKEN, Presiding Judge.

The prosecution in this case originated in the county court wherein the defendant (appellant) was tried and convicted for the offense of violating the prohibition law by having in his possession a bottle of whiskey. He appealed from the county court to the circuit court, and the record in this connection appears regular in all respects.

In the circuit court he was tried upon the complaint of the solicitor, which complaint was based upon the same charge as contained in the original affidavit. The trial in the circuit court was by jury and resulted in his conviction as charged; the jury assessed a fine of $300. Failing to pay said fine and costs, or to confess judgment therefor, the court duly sentenced him to hard labor for the country as the statute provides. From the judgment of conviction this appeal was taken.

On the trial in the circuit court this appellant was attended by counsel, but it appears throughout the entire trial no ruling of the court was invoked. No special written charges were requested, nor was there a motion for a new trial. Hence no point of decision is presented for our consideration on this appeal. Green v. State, 22 Ala.App. 591, 118 So. 505.

The sufficiency of the testimony to sustain the judgment of conviction is not questioned in any manner. However, we are of the opinion, if such question had been raised in the lower court and here, it could have availed the appellant nothing, as the evidence adduced upon the trial, while in conflict, was ample to sustain the burden of proof necessary to a conviction. The record is regular.

Affirmed.