Roberson v. State
| Decision Date | 30 June 1932 |
| Docket Number | 8 Div. 627. |
| Citation | 144 So. 371,25 Ala.App. 270 |
| Parties | ROBERSON v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Nov. 8, 1932.
Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr. Judge.
Garland Roberson was convicted of distilling and possessing a still and he appeals.
Affirmed.
Wm Stell, of Russellville, for appellant.
Thos. E. Knight, Jr., Atty. Gen., for the State.
The judgment of conviction in this case was based upon the verdict of the jury wherein they found appellant guilty, under a general verdict, as charged in the indictment upon which he was tried. There were two counts to the indictment. The first charged that he did distill, make, or manufacture alcoholic, etc., liquors. And the second count charged the unlawful possession of a still, etc., to be used for that purpose. Both counts were sufficient in form and substance.
The state's testimony consisted of the evidence of the two officers who raided the still in question, and both of them testified, positively and directly, that this appellant and another man were actively engaged in the operation of the still and that upon their approach the two men engaged in its operation ran away and escaped. They identified this appellant positively and testified they saw him replenish the fire in the furnace and assist in handling or measuring up the whisky already made or manufactured, several gallons of which were found at the still. There were also large quantities of beer, and the evidence shows that the still was complete in all details and whisky running from the worm.
This appellant, however, testified that he was not at the still but was many miles away at the time testified to by the state's witnesses. He also offered the testimony of other witnesses which tended to sustain the alibi. This conflict in the evidence made a jury question, and rendered inapt the affirmative charge requested by defendant.
The rulings of the court upon the admission of the testimony are so clearly free from error a detailed discussion in this connection is deemed unnecessary.
The record, on page 16, shows, after the conclusion of the oral charge: "The defendant objects to that part of the oral charge wherein he says, etc." A mere "objection" to the oral charge is not the equivalent of an exception. We therefore pretermit the insistence that error prevailed in the oral charge of the court.
This case involved a question of fact which was decided by the jury adversely to appellant. We are of the opinion that the evidence fully warranted the jury in the verdict rendered. There appears no reversible error on the trial below. The record is also regular and without error. The judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.
On Rehearing.
At the earnest solicitation of appellant on rehearing, we will pretermit the manner in which the purported exception to the oral charge is presented and discuss the point of decision involved. We find no error in the statement of the court of which appellant complains. The court charged the jury to the effect if, after considering all the evidence adduced upon the trial, they had a reasonable doubt of the defendant's guilt, they should acquit the defendant. These utterances by the court in the oral charge placed the proper burden of proof upon the state. The excerpt of the oral charge complained of was: "That if the defendant has reasonably satisfied you that he was in Colbert County at the time." This statement, standing alone, was unintelligible and meaningless. When taken and considered with the entire oral charge of the court, as must be done, the burden of proof was rested upon the state and at no time upon the accused. Moreover, the statement itself, as made, has the approval of numerous decisions of the Supreme Court of this state.
In Spencer v. State, 50 Ala. 124, the court said "An alibi should be proven, just as any other fact...
To continue reading
Request your trial
-
American Sur. Co. of N. Y. v. Hooker
...section with the Jury.' It has been held that an 'objection' to the oral charge is not equivalent to an 'exception.' Roberson v. State, 25 Ala.App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417; Horn v. State, 23 Ala.App.......
-
Cadle v. State
... ... to prove the truthfulness of his alibi." Exception was ... duly reserved to the above-quoted portion of the oral charge, ... and in support of this insistence we are cited the following ... authorities: Prince v. State, 100 Ala. 144, 14 So ... 409, 410, 46 Am.St.Rep. 28; Roberson v. State, 25 ... Ala.App. 270, 144 So. 371; Johnson v. State, 223 ... Ala. 332, 135 So. 592. In Prince v. State, supra, the court ... said: "The court further charged the jury 'that the ... burden of proof is on the defendant to establish his alibi, ... and that it must be done to your ... ...
-
Knighten v. State
...are committed to the view that an 'objection' to the court's oral charge is not equivalent to an 'exception.' Roberson v. State, 25 Ala.App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala.App. 418, 41 So.2d However, when the oral charge is consi......
-
Smitherman v. State
... ... His ... defense was an alibi, and he introduced much evidence in ... support thereof. He was due to have the jury instructed in ... the terms of these charges. Gilbert v. State, 20 ... Ala.App. 565, 104 So. 45; Stewart v. State, 25 ... Ala.App. 266, 145 So. 162; Roberson v. State, 25 ... Ala.App. 270, 144 So. 371 ... The ... disallowance of similar charges has been approved by our ... appellate courts, but in each case where we have found this ... to be true account was taken of the doctrine of conspiracy, ... and it was there declared that the ... ...