This cause was originally submitted January 17, 1924, and on February 5, 1924, was affirmed, with an opinion prepared by FOSTER, J., which we here adopt as applicable to the propositions then presented.
On April 8, 1924, on application, supported by affidavits, a rehearing was granted, the opinion was withdrawn and the cause restored to the docket and certiorari awarded to bring up the entire record. On this submission the return to the certiorari does not show a change of the record from that on the original submission.
As now presented it is insisted that there is only one count in the indictment, joining two separate felonies in the same count, which is not permissible under the practice in this state. There is no ground for this contention. There are two counts in the indictment. The first charges the defendant with manufacturing whisky, and the second with unlawfully possessing a still. True, the counts are not numbered, but they are separate and distinct, and so drawn as to admit of no doubt.
As now presented the record does not contain the oral charge of the court as required by Acts 1915, p. 815. The duty of presenting a correct record rests with the appellant. In the absence of the charge of the court this court cannot review the rulings of the trial court in refusing written charges requested by the defendant, where such charges are predicated upon the evidence, except as to the refusal of the general charge, which will hereafter be discussed. Wright et al. v. Walker, 17 Ala. App. 57,81 So. 689.
If there is a bill of exceptions and no oral charge of the court appearing in the record, but there appears a general affirmative charge, requested in writing and refused to the defendant, the court will review the action of the trial court in refusing the charge. This for the reason that, if the defendant is entitled to the general charge upon the whole evidence, there would be no occasion for an oral charge of the court, and, if such was given, nothing therein given in charge to the jury could cure the error in refusing the affirmative charge as requested. Or, if there *Page 283 should appear in the record a bill of exceptions and a general affirmative charge given for the state and no oral charge of the court, this court on appeal will review the action in giving such charge at the request of the state. In either of the above cases there is a completed question of law presented to the trial court and to this court.
In this record there is no affirmative charge either for the state or the defendant, and the judgment is affirmed.
Affirmed.