Traylor v. State

Decision Date19 August 1924
Docket Number8 Div. 177.
Citation20 Ala.App. 262,101 So. 532
PartiesTRAYLOR v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Sept. 2, 1924.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Henry Traylor was convicted of possessing a still, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Traylor, 101 So. 533.

P W Shumate, of Guntersville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The indictment against this appellant, defendant below, contained two counts. Count 1 charged that he distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol. Count 2 charged in the usual form the unlawful possession of a still to be used for the purpose of manufacturing prohibited liquors or beverages.

When the testimony was all in, the court properly charged out the first count, as there was no evidence to sustain the charge contained in that count. The case went to the jury under the second count, and from a judgment of conviction under said count, based upon the verdict of the jury, defendant appealed.

The main insistence of error is the insufficiency of the evidence to support the judgment. This question is raised in three ways: (1) By defendant's motion to exclude the evidence made at the close of the state's case; (2) by the refusal of the affirmative charge requested in writing; and (3) by overruling defendant's motion for a new trial.

It is also contended that the court committed reversible error in refusing to grant a continuance of this cause under the showing made to the court by the defendant. We cannot so hold under the following authorities: Gilbert v. State, 2 Ala. App. 95, 57 So. 127; Scott v State, 3 Ala. App. 150, 57 So. 413; Brown v. City of Tuscaloosa, 12 Ala. App. 609, 67 So. 780; Brand v State, 13 Ala. App. 394, 69 So. 379; Gilbert v. State, 18 Ala. App. 393, 92 So. 522; Lutz v. V. H. Brokerage Co., 202 Ala. 234, 80 So. 72. These, and many other authorities, hold that the question of continuance rests in the sound discretion of the court, and the rule prevailing for many years in this state was that the trial court's action in this regard was not reviewable. The present, and we think better, rule is that the question will be reviewed by the appellate courts, but no reversal will be had, except where a gross abuse of the discretion is shown. Here no such abuse of this discretion appears.

On the question as to the sufficiency of the evidence to support the verdict and sustain the judgment of conviction we are of the opinion that a jury question was presented, and therefore the court was without authority to direct a verdict; for the general rule is the affirmative charge should never be given where there is any evidence, though weak and inconclusive tending to make a case against the party who asks the charge. In the instant case we are of the opinion that the following facts testified to by state witness Hyde (some of which was denied by defendant) tended to make out a case against defendant on the charge contained in the second count of the indictment. The testimony of Witness Hyde (sheriff) tended to show that he knew the defendant, Henry Traylor; that some time during the...

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6 cases
  • Burns v. State
    • United States
    • Alabama Supreme Court
    • 6 Octubre 1932
    ...185 Ala. 8, 64 So. 333; Mosley v. State, 22 Ala. App. 95, 112 So. 811; Creel v. State, 23 Ala. App. 241, 124 So. 507; Traylor v. State, 20 Ala. App. 262, 101 So. 532. remark of the court when denying the motion for continuance does not show prejudice on the part of the court; but was merely......
  • Eatman v. State
    • United States
    • Mississippi Supreme Court
    • 5 Marzo 1934
    ... ... 176; Coleman v. Adair, 75 Miss. 660; New Or., ... etc., R. R. Co. v. Jackson, 140 Miss. 375; Gulf, ... etc., R. R. Co. v. Prime, 118 Miss. 90; New Or., ... etc., R. R. Co. v. Penton, 135 Miss. 571; New Or., ... etc., R. R. v. Martin, 140 Miss. 410; Gidley v ... State, 97 So. 170; Traylor v. State, 101 So ... 532; Gosa v. State, 108 So. 75 ... Under ... the rule that the courts must take as true all evidence ... favorable to insanity in passing on the propriety of ... peremptory instructions, the court would have to take as true ... the finding the the chancery ... ...
  • Creel v. State
    • United States
    • Alabama Court of Appeals
    • 19 Marzo 1929
    ... ... leading counsel's reasons for being unable to take part ... in the trial, but the situation surrounding the defendant ... himself does not show, in our opinion even as strong reasons ... for a continuance as that surrounding the defendant in the ... case of Traylor v. State, 20 Ala. App. 262, 101 So ... 532, the case cited and relied upon as authority by ... appellant's counsel, for our holding as error the said ... action of the trial judge in this case. And in the Traylor ... Case we held that no abuse of the trial court's ... discretion was shown ... ...
  • Self v. State
    • United States
    • Alabama Court of Appeals
    • 23 Marzo 1926
    ... ... case. This charge has been condemned by the Supreme Court in ... the case of Edwards v. State, 87 So. 179, 205 Ala ... Charges ... A and B were the affirmative charges. They were properly ... refused, as there was a conflict in the evidence which made a ... jury question. Traylor v. State, 101 So. 535, 20 ... Ala.App. 262 ... The ... rulings of the court upon the admission of the evidence, to ... which exceptions were reserved, related to matters irrelevant ... and immaterial to the issues involved upon the trial of this ... case. Whether state witness ... ...
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