Walters v. State , 19 Ala. App. 92 ( 1923 )

The demurrers to the indictment were without merit, and were properly overruled. The second count of the indictment charges a felony, and does not charge a misdemeanor, as contended by appellant. Acts 1919, p. 1086. Under the laws of this state a public offense which may be punished by death or by imprisonment in the penitentiary is defined to be a felony. All other public offenses are called misdemeanors. Code 1907, § 6756.

The second count of the indictment against this defendant charged the violation of the act approved September 30, 1919 (Acts 1919, p. 1086), said count being framed under said act. Section 3 of said act provides that any person — who shall violate any provision of this act shall be guilty of a felony, and upon conviction thereof shall be punished by confinement at hard labor in the penitentiary for not less than one year or longer than five years, the punishment to be fixed by the court within these limits. It follows, therefore, that counsel for appellant is in error in his insistence that the second count of the indictment charged a misdemeanor, and not a felony.

On the trial of this case it was the contention of the state that this defendant, with another, was caught in the act of distilling whisky in Tuscaloosa county, Ala., and within the time covered by the indictment. And the state offered and examined several witnesses whose testimony tended to sustain this contention. The defendant, while admitting his close proximity to the still (which was in operation) at the time of his arrest, insisted that he had nothing whatever to do with the operation of the still and of the making of the whisky which the undisputed testimony shows was running from the still at the time the posse of officers made the raid and arrested the defendant.

This and other testimony adduced upon the trial of this case presented a question for the jury to determine, and, while there were several exceptions reserved to the rulings of the court upon the admission of testimony, these exceptions are so clearly and wholly free from error we shall not discuss them. There is not a single question presented in this connection which admits of any doubt as to the correctness and fairness by the court in all of these rulings. Certainly it cannot be seriously insisted that any of these rulings contained error that in any manner injuriously affected the substantial rights of the defendant.

Refused charges (a) and (7) were identical, and bad, and have been expressly so held in the case of Smith v. State, 197 Ala. 193 (15), 72 So. 316. In Smith's Case, supra, the court in speaking upon this identical charge said:

"The charge was properly refused, for the use of the word 'supposition.' All cases in this state, holding that the refusal of such a charge is erroneous, are hereby overruled."

Charge (c) was abstract, and therefore properly refused. No effort was made during the trial to impeach the witness Luke Curry. A mere contradiction of one witness by another is not an impeachment of the witness so contradicted.

As hereinabove stated, there was a material conflict in the testimony making it a jury question; it follows that the affirmative charge (f) was therefore properly refused.

Refused charge 1 was fully covered, not only by the oral charge, but also by the charges given at request of defendant, notably, given charge 1, which is in the exact words of said refused charge. Its refusal was not error.

No error appears in any ruling of the court nor in the record. The judgment appealed from is affirmed.

Affirmed.