Tuggle v. State , 19 Ala. App. 539 ( 1924 )

A prosecution against this defendant for the offense of unlawfully possessing prohibited liquor was instituted in the county court of Walker county, upon the affidavit and warrant sworn out by one John Guttery. From a judgment of conviction in the county court he appealed to the circuit court, and was there tried and convicted upon a complaint filed by the solicitor charging the same offense.

During the progress of this trial in the circuit court no exception was reserved to any ruling of the court except as to the refusal of several special written charges.

Refused charges 7 and 8 were the affirmative charges in behalf of appellant. These charges were properly refused, as the evidence was in conflict, and therefore presented a jury question.

Charges 1 and 2, refused to defendant, were invasive of the province of the jury. They do not properly state the law. Davis v. State (Ala.App.) 96 So. 369,¹ and cases cited; Ex parte Davis, 209 Ala. 367,96 So. 370.

Charges 3, 4, 5, and 6 were fairly and substantially covered by the oral charge of the court, and also by given charges 4, 11 and 12. Refused charge 10 was argumentative, and was properly refused.

No error of a reversible nature appearing, the judgment of conviction will stand affirmed.

The judgment entry as to the sentence is erroneous, in that it fails to set out the amount of the costs chargeable against the defendant, and also fails to state the number of days required to work out the cost at the rate of 75 cents per day. There is nothing in the contention that the judgment entry fails also to state where or for whom the defendant is to work. Section 7620 of the Code will control as to these questions.

From what has been said the judgment as to sentence must be reversed and remanded in order that the trial court may enter a proper judgment and sentence as to the costs in conformity with the requirements of sections 7635 and 7620 of the Code 1907. Kirkland v. State, 12 Ala. App. 204, 68 So. 518; Woods v. State, 10 Ala. App. 96, 64 So. 508; Wright v. State,9 Ala. App. 79, 64 So. 173; Barrentine v. State, 3 Ala. App. 188,57 So. 1025.

Affirmed in part, reversed in part, and remanded.

¹ Ante p. 94.