Warren v. State

• Decision Date: 14 June 1921
• Docket Number: 3 Div. 396
• Parties: WARREN v. STATE.
• Court: Alabama Court of Appeals

90 So. 277

18 Ala.App. 245

WARREN v. STATE.

3 Div. 396

Court of Appeals of Alabama

June 14, 1921

Rehearing Denied July 19, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

J.R Warren was convicted of manufacturing prohibited liquors, and he appealed. Reversed and remanded.

Certiorari denied 90 So. 926.

Mark D Brainard, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and W.T. Seibels, Sol., and R.G Arrington, Asst. Sol., both of Montgomery, for the State.

BRICKEN P.J.

In brief of counsel for defendant, it is insisted that the defendant was entitled to his discharge in the court below because the evidence failed to make out a case against him, and was therefore insufficient upon which to predicate a verdict of guilt. An examination of all the evidence in this case discloses that there is probably much merit in this insistence, for it conclusively appears that, so far as this defendant is concerned, the evidence adduced upon this trial is very vague, uncertain, and unsatisfactory, and it may be that, if these questions were here presented in a manner authorizing this court to consider same, we would be forced to the conclusion that the evidence connecting the defendant with the offense charged was not sufficient to overcome the presumption of innocence which, under the law, attended him throughout the trial of this cause. However, no ruling of the court was invoked upon this question; the affirmative charge was not requested, nor was there a motion for a new trial made, by which means, either one or both, the question would have been presented for review. Courts of last resort are without authority to put the lower court in error, in the absence of some ruling of such court showing or containing error.

Appellant's counsel insist that, notwithstanding the fact that the affirmative charge was not requested in the court below, and notwithstanding the further fact that the question of the sufficiency of the evidence to support a conviction was not presented in any other manner, yet it is the duty of this court to reverse the case in order that justice may be done, and in this connection the brief of counsel contains the following:

"Could it be contended either in law or morals that, because a defendant had failed to ask the affirmative charge when it was patent that there was not evidence to sustain a conviction, and the jury should find him guilty and fix the death sentence, that the court would say you will forfeit your life, not for a crime against our law, but because of your ignorance or neglect in failing to ask the affirmative charge? Would not, in this instance, the law be violated by the judge in allowing such a judgment to stand, and a great crime be committed, namely, murder, not for the taking of human life, but for the failure on account of ignorance or neglect to ask a charge?"

However meritorious this contention may appear from the defendant's viewpoint, under the many adjudications of the...