Smith v. State

Decision Date08 June 1926
Docket Number6 Div. 984
Citation109 So. 294,21 Ala.App. 460
PartiesSMITH v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied June 29, 1926

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Charley Smith was convicted of distilling, and he appeals. Affirmed.

Curtis Pennington & Pou, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and M.E. Nettles, Solicitor, of Jasper for the State.

SAMFORD J.

The authorities cited in appellant's brief on the question of the court's refusal to give in writing the general charge are not applicable to the case at bar. In this case the evidence is in conflict, and from the state's testimony fair inferences may be drawn to support the verdict of guilt. It is only where there is no evidence to support the verdict that the general charge should be given, or where there may be slight evidence of guilt with overwhelming evidence of innocence that motions for new trial should be granted.

There were other parties besides the defendant who, according to the state's witnesses, ran away from the still at the time of the raid, and hence under the evidence refused charge 4 was improper.

Refused charge 21 pretermits a consideration of the evidence, and assumes as proven the place, the surroundings, the distance the woods, and other obstructions. The charge was properly refused. Refused charge 23 is covered by given charge 22. Refused charge 24 is elliptical.

The defendant asked a state's witness on cross-examination "Now, since that time (time of raid), you have heard that there was a man got pretty bad shot at that still, haven't you?" This question called for hearsay testimony. The same witness was then asked: "If there was anybody else there that got shot besides these two men or Bob Bailey or Zoellus Knight, then you were mistaken in the identity of one of these men, aren't you, Mr. Kilgore?" An attorney should never be...

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8 cases
  • Williams v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 22 Mayo 1979
    ...its own conclusions. Knight v. State, 160 Ala. 58, 49 So. 764 (1909); Wade v. State, 349 So.2d 141 (Ala.Cr.App.1977); Smith v. State, 21 Ala.App. 460, 109 So. 294 (1926). XII The trial court acted within its discretion in sustaining the State's objection to defense counsel's question of whe......
  • Shewbart v. State
    • United States
    • Alabama Court of Appeals
    • 10 Junio 1947
    ... ... The ... accused denied he was there and disclaimed any knowledge of ... or connection with illegal outfit ... Clearly a jury question was posed, and the defendant was not ... due the affirmative charge. Smith v. State, 21 ... Ala.App. 460, 109 So. 294; Rikard v. State, 31 ... Ala.App. 374, 18 So.2d 435; Bradley v. State, 31 ... Ala.App. 475, 18 So.2d 702 ... The ... record on this appeal is not voluminous, and there are ... comparitively few questions presented for review ... ...
  • Couch v. State
    • United States
    • Alabama Court of Appeals
    • 12 Diciembre 1944
    ... ... indulge every presumption in favor of the correctness of the ... ruling of the lower court in refusing to disturb the verdict ... of the jury. Davis et al. v. State, 29 Ala.App. 421, ... 198 So. 153, certiorari denied 240 Ala. 160, 198 So. 155; ... Smith v. State, 23 Ala.App. 488, 128 So. 358, ... certiorari denied 221 Ala. 217, 128 So. 359; Smith v ... State, 21 Ala.App. 460, 109 So. 294 ... Giving ... a fair and careful consideration to all the evidence in the ... case it appears to us that there can be no room for plausible ... ...
  • Bell v. State, 1 Div. 471.
    • United States
    • Alabama Court of Appeals
    • 8 Mayo 1945
    ...22 So.2d 116 32 Ala.App. 118 BELL v. STATE. 1 Div. 471.Alabama Court of AppealsMay 8, 1945 ... [32 ... Ala.App. 120] ... [22 So.2d 117] ... Granade ... & Granade, of Chatom, for appellant ... Wm ... N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty ... Gen., for the State ... [32 ... Ala.App. 119] ... The ... following requested charges were refused to defendant; ... '4 ... I charge you, Gentlemen of the Jury, that the burden rests ... upon the State of Alabama to convince you beyond a ... ...
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