Wilkerson v. State

• Decision Date: 18 February 1930
• Docket Number: 4 Div. 529.
• Citation: 24 Ala.App. 53,129 So. 720
• Parties: WILKERSON v. STATE.
• Court: Alabama Court of Appeals

129 So. 720

24 Ala.App. 53

WILKERSON v. STATE.

4 Div. 529.

Court of Appeals of Alabama

February 18, 1930

Rehearing Denied May 27, 1930.

Reversed on Mandate Aug. 19, 1930.

Appeal from Circuit Court, Coffee County; John H. Wilkerson, Special Judge.

Everett Wilkerson was convicted of unlawfully possessing a still, and he appeals.

Affirmed.

M. A Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD J.

We have examined this record with great care and, while the volume of testimony appears ominous, and it is replete with objections and exceptions there is not a question raised that is new or novel and has not been decided adversely to appellant's contention.

The testimony for the state tends strongly to prove the defendant's guilt, exclusive of the testimony of parties who were themselves guilty testifying for the state. In addition to this is the proven confession of defendant, who admittedly was present with the others at the time of the discovery of the still, and the liquor made on it was still warm.

The defendant comes now on the trial, admits he was at or near the still on Sunday afternoon, and undertakes to account for his presence by proving that he was digging fish bait. The jury had before them fairly the whole evidence and they evidently didn't believe the "fish bait story."

The remark of the solicitor to which exception was reserved is within the bounds of legitimate argument. We may add that it is now a matter of common knowledge, extending over this entire nation, that when an officer or officers go into the dens where "wild-cat" whisky is made and lawless bootleggers congregate, the danger to both life and limb is ever present.

Insistence is made that the confession of defendant should have been excluded, because in referring to the ownership the witness used the word "it" instead of saying still, and it is now claimed that "it" might have referred to the whisky found at the house and in possession of the "gang," one of whom was defendant. We think this is captious, but conceding that "it" could have referred either to the still or the whisky, the confession would still have been admissible. The whisky, according to the evidence, had every indication of having been recently manufactured on the still, the house, in which were defendant and others, was in such proximity to, and was so connected with the still as to make the whole a part of the res gestæ. Under the evidence in this case, the place where the still was located, the path and road leading from the still to the house where the defendant and his companions were found, the warm whisky, and everything said and done there immediately prior to and at the time of the arrest was a part of the res gestæ, and as such was admissible in evidence. Bruce v State, 22 Ala. App. 440, 116 So. 511; Adams v. State, 22 Ala. App. 566, 118 So. 325.

The state solicitor in examining a defendant's witness on cross-examination said (inquisitorially), Mr. Blair is in the penitentiary, I suppose. This question was never answered and hence there is no exception.

It was shown by the evidence that, at the time of the arrest there was a demijohn containing whisky from which the parties, including this defendant, were drinking. This was prior to the arrest and the contents of the demijohn related to the possession of the still. All these facts were admissible.

Enoch Johnson, a witness for the state, testified to having found the still. The defendant's counsel on cross-examination asked: How did you find your way to it? The state objected to this, the objection was sustained and the defendant excepted. This was error. Brooks v. State, 21 Ala. App. 479, 109 So. 887. But the error was of such a nature as not to justify a reversal.

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