Sherman v. State

• Decision Date: 30 November 1954
• Docket Number: 5 Div. 433
• Citation: 77 So.2d 495,38 Ala.App. 106
• Parties: Oscar SHERMAN v. STATE.
• Court: Alabama Court of Appeals

Page 495

77 So.2d 495

38 Ala.App. 106

Oscar SHERMAN v. STATE.

5 Div. 433.

Court of Appeals of Alabama.

Nov. 30, 1954.

Rehearing Denied Dec. 28, 1954.

Wilbanks & Wilbanks, Alexander City, for appellant.

Si Garrett, Atty. Gen., for the State.

The following charges were refused to defendant:

'2. I charge you, gentlemen of the jury, that if you believe from the evidence in this case that if a statement of any kind was obtained from the defendant by telling or leading the defendant to believe that the punishment of the defendant would be lightened by his making a statement, then under the law in this case, you must find for the defendant.

'4. I charge you, gentlemen of the jury, that you must find from the evidence in this case that the defendant actually was putting into use parts of a still in an unlawful manner before you can return a verdict of guilty.

'5. I charge you, gentlemen of the jury, that unless you find from the evidence in this case that the defendant was actually using the still parts at the time the officers arrested him, then you must find for the defendant.

'7. I charge you, gentlemen of the jury, that unless you are convinced by the evidence beyond a reasonable doubt that the confession introduced was freely and voluntarily made, you would have no right to consider the confession and if the other testimony, exclusive of the confession, is insufficient to convince you beyond a reasonable doubt of the defendant's guilt, then it would be your duty to acquit the defendant.

'8. I charge you, gentlemen of the jury, that confessions such as has been testified about in this case are received by the court with great caution. They are easily fabricated, and the detection and exposure of their fallacy is often difficult. But when confessions are deliberately and precisely identified, they are among the most satisfactory, effectual proofs of guilt. In consideration and determination of the credibility of confessions, or the effect and weight to which they are entitled, the jury must look to all the facts and circumstances under which the confessions are made; those which are introduced before the court, if shown to them, as well as any other that may be introduced.

'13. I charge you, gentlemen of the jury, that the burden is on the state to prove possession of complete still, and to acquit the defendant if one essential part of still was missing.

'14. I charge you, gentlemen of the jury, that it is the law that notwithstanding the proof beyond a reasonable doubt that the defendant was in possession of parts of a still suitable to be used in the manufacture of whiskey, and such possession was unexplained, yet if the fact and circumstances disclose that in fact no complete still was in possession of the defendant, there can be no conviction in spite of a prima facie case made by the state.

'35. I charge you, gentlemen of the jury, that unless the jury believe and are convinced from the evidence beyond a reasonable doubt that the defendants or defendant had in his or their possession a complete still, your verdict must be for the defendant.

'36. I charge you, gentlemen, that the state must prove to you beyond a reasonable doubt that the defendant must be in possession of a complete still before conviction thereunder can be had.

'37. I charge you, gentlemen of the jury, that unless the jury are convinced beyond a reasonable doubt that the defendant had in his possession a complete still your verdict must be for the defendant.

'38. I charge you, gentlemen of the jury, that there is no evidence in this case that the defendant had in his possession a complete still or any parts of a still at the time he, or they were arrested.'

CARR, Presiding Judge.

Austin Robinson, Jessie Sherman, and Oscar Sherman were indicted under separate indictments for manufacturing whiskey under the first counts and possessing an illegal still under the second counts. Each of the indictments related to the same transaction; that is the operation and the possession of the same still.

By agreement of counsel the three cases were tried jointly with the understanding that separate verdicts would be returned.

This appeal is from a judgment of conviction and sentence of Oscar sherman.

The judgment in pertinent parts is:

'And now on the 13th day of August, 1953, the defendant, Oscar Sherman, was formally sentenced to imprisonment in the pententiary (sic) for a term of two years.

'The defendant being in open Court and being asked by the Court if he had anything to say why the sentence of the law should not be pronounced upon him says nothing. It is therefore considered by the Court and it is the judgment and the sentence of the Court that the said defendant, Oscar Sherman, be imprisoned in the pententiary (sic) of the State of Alabama for a term of two years and six months.'

It will be noted that an informal and unnecessary statement in the judgment indicates that the sentence was for two years. However, the formal part declares that the defendant be imprisoned in the penitentiary of the State for a term of two years and six months. This latter declaration controls. The certificate of appeal stipulates that the defendant was sentenced to a term of two years and six months.

The evidence for the State consisted of the testimony of the raiding officers and confessions of the defendants. Neither of the accused testified in the case, nor did they offer any evidence otherwise.

In a wooded place in Tallapoosa County, Alabama, the officers found a complete, assembled whiskey distilling outfit with the exception of the worm. This part was subsequently located not a great distance from the still. Its hiding place was pointed out to the officers by one of the defendants.

The still was not in operation at the time of the raid, but it was filled with fermented mash with alcoholic content.

After the officers had been in waiting in their hidden positions for some time, Austin Robinson drove up in an automobile and was arrested. His car contained a number of empty jugs, tin cans, and lunch boxes.

Later the defendants Jessie and Oscar Sherman drove up near the still place in a car and unloaded therefrom fifty-five gallons of gasoline, eighteen empty five gallon jugs, and a gas burner. They journeyed a short distance up in the woods and went to sleep in the automobile. The officers went up there and arrested them after waiting a time to see if they would come to the still.

The next morning in the office of the sheriff each defendant made a separate statement which was reduced to writing. The usual and customary questions were asked the witnesses as predicates to determine whether or not the confessions were voluntarily made. Unquestionably the proof was sufficient in this aspect to permit the introduction of the written statements.

The appellant's statement is: Elmore County, Alabama, 10-10-1912 6' 2"'

'I Oscar Sherman, CM age 40, born in weight 174, black hair, brown eyes, 2"' scar on top of head, make the following statement of my own free will and accord, I have been told that I do not have to make a statement and if I do it can be used in Court against me, I have not been mistreated in any way nor have I been promised any reward or immunity to get me to make this statement.

'About a month ago a white man came to my house in Birmingham and asked me did I want to make some whiskey for him, he told me he would give me $50.00 a run. I told him that I would and he got up the material and I took the material to a place in Tallapoosa County about 13 miles from Alexander City and built the still. I do not know the white mans name, he told me to get two other fellows to help me and that he would pay them too, he told me to call him Mr. John. After I had built the still, I told Mr. John and he brought the material to the still site and Jessie Sherman (my brother) and Austin Robinson helped me at the still. On the first run we did not make any whiskey, we then recharge the still and on the second run we made about 90 gallons. We would run off the whiskey and leave it at the still site for Mr. John. Last night I drove to the still in my 1946 Dodge and carried 55 gallons of gasoline, 1 burner, and 18 glass 5 gallon jugs, we unloaded the material at the still and then drove across the road to wait for Austin Robinson to...