Traylor v. State, 8 Div. 177.

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

101 So. 532

20 Ala.App. 262

TRAYLOR
v.
STATE.

8 Div. 177.

Court of Appeals of Alabama

August 19, 1924


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: [20 Ala.App. 263] 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...

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6 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • 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. The remark of the court when denying the motion for continuance does not show prejudice on the part of the court; but was me......
  • Eatman v. State, 31145
    • United States
    • United States State Supreme Court of Mississippi
    • 5 Marzo 1934
    ...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 ......
  • Creel v. State, 6 Div. 515.
    • United States
    • Alabama Court of Appeals
    • 19 Marzo 1929
    ...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......
  • Self v. State, 7 Div. 137
    • United States
    • Alabama Court of Appeals
    • 23 Marzo 1926
    ...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 immateri......
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6 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • 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. The remark of the court when denying the motion for continuance does not show prejudice on the part of the court; but was me......
  • Eatman v. State, 31145
    • United States
    • United States State Supreme Court of Mississippi
    • 5 Marzo 1934
    ...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 ......
  • Creel v. State, 6 Div. 515.
    • United States
    • Alabama Court of Appeals
    • 19 Marzo 1929
    ...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......
  • Self v. State, 7 Div. 137
    • United States
    • Alabama Court of Appeals
    • 23 Marzo 1926
    ...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 immateri......
  • Request a trial to view additional results

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