Webb v. State

• Decision Date: 26 June 1923
• Docket Number: 7 Div. 859.
• Citation: 19 Ala.App. 359,97 So. 246
• Parties: WEBB v. STATE.
• Court: Alabama Court of Appeals

97 So. 246

19 Ala.App. 359

WEBB v. STATE.

7 Div. 859.

Court of Appeals of Alabama

June 26, 1923

Rehearing Denied July 14, 1923.

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

Joe Webb, alias Joseph Webb, was convicted of violating the Prohibition Law, and appeals. Affirmed.

Isbell & Scott, of Ft. Payne, for appellant.

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

FOSTER J.

The defendant was charged in the first count of the indictment with manufacturing prohibited liquors, and in the second count with having in his possession a still. The evidence was sufficient to justify the verdict of guilt.

Counsel for appellant insist that there was no proof of the time of the commission of the offense charged, and that the affirmative charge requested by the defendant should have been given on this ground.

The point upon which the charge was asked was not brought to the attention of the trial court as required by Circuit Court Rule 35, which is as follows:

"Whenever the general charge is requested, predicated upon failure of proof as to time, venue or any other point not involving substantive right of recovery or of defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error for refusing said charge, unless it appears upon appeal, that the point upon which it was asked was brought to the attention of the trial court before the argument of the case was concluded," etc.

It is not affirmatively shown by the record that the failure of the prosecution to prove the time of the commission of the offense was brought to the attention of the trial court, and in the absence of such proof the trial court will not be put in error for refusing the affirmative charge. Hendrix v State, 11 Ala. App. 207, 65 So. 682; Jones v State, 13 Ala. App. 10, 68 So. 690; Ray v State, 16 Ala. App. 496, 79 So. 620; McPherson v. State, 198 Ala. 5, 73 So. 387.

The state elected to prosecute for the possession of a still at a time testified to by one Rogers.

A witness, Gardner, was permitted over the objection of the defendant to testify that he saw the defendant at the same still at the same place about two weeks prior to the time Rogers saw him and made the raid on the still.

The crime of possessing a still is continuous in its nature, and when referring to the same still and location, proof of the presence of defendant at the same still and location a short time prior to the time relied on by the state for conviction is competent to establish the offense.

The offense testified to by Rogers and that testified to by Gardner related to the same defendant, the same still, and the same location, and were so connected, the possession being continuous, that they form part of one transaction and constitute but one offense. Vaughan v. State, 18 Ala. App. 57, 88 So. 374.

As a general proposition, upon a trial for one offense, evidence of another distinct offense, though of the same nature, is inadmissible. But this rule is not without its limitations or exceptions. "Where it becomes necessary to prove a guilty knowledge on the part of the prisoner, evidence of other offenses committed by him, though not charged in the indictment, is admissible for that purpose. It is upon this principle that, on the trial of an indictment for uttering a forged bank note, knowing it to be forged, evidence may be given of other forged notes having been uttered by the prisoner, in order to show his knowledge of the forgery. Rex v. Whiley, 2 Leach's C. C. 983; 2 Russ. Cr. 777; Tharp v. State, 15 Ala. 749. If it be material to...