Whitehead v. State

• Decision Date: 24 June 1924
• Docket Number: 4 Div. 916.
• Citation: 101 So. 70,20 Ala.App. 95
• Parties: WHITEHEAD v. STATE.
• Court: Alabama Court of Appeals

101 So. 70

20 Ala.App. 95

WHITEHEAD v. STATE.

4 Div. 916.

Court of Appeals of Alabama

June 24, 1924

Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.

John Whitehead was convicted of violating the prohibition law, and appeals. Affirmed.

W. O Long, of Abbeville, for appellant.

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

FOSTER J.

The appellant, defendant in the court below, was convicted for manufacturing prohibited liquors and having in his possession a still to be used for manufacturing prohibited liquors.

The defendant was found working at a still from which whisky was dripping. He was cutting wood and piling it around the still daubing the trough; the still had a big fire around it, and was full of beer.

The defendant denied any interest in or control of the still denied working at it or making any liquor, said he was there looking for hogs. The good character of the defendant was proven.

H. S. Maddox, a witness for the state, testified that he was sheriff of Henry county and arrested the defendant, that "when I raised up on him I told him to hands up and he said, 'Don't shoot me,' and backed off." The defendant moved to exclude the answer. Where objection is not interposed to the question, it comes too late after the question is answered. Downey v. State, 115 Ala. 108, 22 So. 479.

The evidence was relevant as part of the res gestæ. Declarations connected with an act and unconsciously made as if spontaneous from the attendant circumstances are admissible as part of res gestæ. Smith v. State, 53 Ala. 486; Jackson v. State, 53 Ala. 472. 1 Mayf. Dig. p. 774, par. 3; Laws v. State, 209 Ala. 174, 95 So. 819.

Frank Owens, a witness for the defendant, testified that the evening before the still was found he saw the defendant and several others in the woods sawing, and the defendant asked, "Did you have any conversation that evening with the defendant about some hogs supposed to be over there in the place where they found the still?" The court sustained the objection by the state to the question. The defendant offered to prove by the witness and others that Owens had employed defendant that day to go the next day to hunt for hogs, and that while hunting hogs he came on this still. The court sustained objection by the state to the testimony offered. There was no exception reserved by the defendant. Rulings of trial courts on admission of...