Wheat v. State , 19 Ala. App. 538 ( 1924 )

The infirmities in the record as originally filed in this court, to which our attention is directed by brief of counsel for appellant, were cured by the returns made to the writ of certiorari issued from this court on April 21, 1923. The record proper as submitted on November 29, 1923, is without error, and appears regular in all things; therefore the insistence of error in this connection cannot be sustained.

It is next contended that the judgment in this case is insufficient and defective. Counsel for appellant cite no authorities in support of this insistence. The second count of the indictment, under which the defendant was convicted, correctly charged the offense of unlawfully possessing a still under the terms of the statute (Acts 1919, p. 1086). The verdict of the jury was referable to the second count of the indictment. While it is apparent that some of the expressions contained in the judgment entry are unnecessary as relating to the validity of the judgment, these expressions may be treated as mere surplusage, as the judgment sentencing the defendant to the penitentiary in accordance with the verdict of the jury sufficiently implies the judgment of guilt, and, as stated in the case of Ex parte Roberson, 123 Ala. 103, 26 So. 645, 82 Am. St. Rep. 107, "is a judgment of conviction which would even support an appeal." See, also Wilkinson v. State, 106 Ala. 28,17 So. 458; Driggers v. State, 123 Ala. 46, 26 So. 512; Talbert v. State 140 Ala. 96, 37 So. 78. Hardaman v. State,17 Ala. App. 49, 81 So. 449, same case on certiorari,202 Ala. 694, 81 So. 656; Wells v. State, ante, p. 403,97 So. 681 (on rehearing).

The remaining question relates to the refusal of the court to give the affirmative charge requested in writing by defendant. Under the undisputed evidence in this case we think the defendant was entitled to this charge, and the court erred in its refusal. This appellant was convicted of possessing a still. From the whole evidence it affirmatively appears that the still in question was not on any land in the possession or control of defendant; to the contrary, the only testimony on this question shows without dispute that the still was not on defendant's land, and that he had no supervision or control of the land upon which it was located. We do not mean to imply or to hold that, if the still had been located upon the lands owned or in the possession of the defendant, or under his control, that fact alone would be sufficient upon which to base a verdict of guilty of being in possession of the still. It would of course be a circumstance to be considered in connection with all the other facts, but, standing alone, without more to connect the defendant with the possession of the still, it would be utterly insufficient upon which to base a verdict of this character. Under the law a presumption of innocence of the accused as to the offense charged attended him upon this trial, and it is an elementary rule of evidence that, before a conviction of a person accused of crime can be had or permitted to stand, the state must assume and carry the burden to adduce evidence to establish the guilt of the defendant beyond all reasonable doubt and to a moral certainty, these two expressions being synonymous in their meaning. In the instant case the evidence offered was insufficient to overcome the presumption of the defendant's innocence. A still in the vicinity of a man's home (in this case from 400 yards to one half mile), a path leading from that still in the direction of the home of accused, without more, is in no sense the requisite proof necessary under the rule announced, and, if lower courts and juries predicate verdicts of guilt upon such inadequate facts, as appears to have been done in this case, the injurious error must be cured by the appellate courts in order that the accused may be accorded a fair and impartial trial, free from hurtful error, such as is contemplated by the Constitution and laws of the state.

The case at bar is similar in many respects to the following cases: Hanson v. State (Ala.App.) 96 So. 655;¹ Gay v. State (Ala.App.) 96 So. 646;² Hammons v. State, 18 Ala. App. 470,92 So. 914; Jones v. State, 18 Ala. App. 116, 90 So. 135; Clark v. State, 18 Ala. App. 217, 90 So. 16; Adams v. State,18 Ala. App. 143, 90 So. 42; Mitchell v. State, 18 Ala. App. 119,89 So. 98; Hill v. State, ante, p. 483, 98 So. 317; Dawkins v. State, ante, p. 501, 98 So. 492.

The defendant, under the evidence in this case, was entitled to his discharge, and the refusal of the affirmative charge, requested in writing was error. The judgment appealed from is reversed, and the cause remanded.

Reversed and remanded.

¹ Ante, p. 249.

² Ante, p. 238.