The defendant was convicted of a violation of the prohibition laws.
It was not competent for a witness for defendant to testify what the defendant was looking for at witness' house on the morning of the raid. Mere conclusions of a witness are not admissible, and it is not permissible for a witness to testify to the mental status of cognition of another. Bailey v. State,107 Ala. 151, 18 So. 234; Central of Ga. Ry. Co. v. Martin, 138 Ala. 533,36 So. 426.
Murphy Hussey, a witness for defendant, testified on cross-examination that the defendant was at his house the morning he was arrested; that he thought it was on Thursday or Friday; that the next time defendant was there was Sunday morning, may have been Saturday evening; and the solicitor for the state asked "Do you think he was there about Saturday or Sunday after that?" Objection by the defendant was overruled and exception reserved. A wide latitude is allowed on cross-examination of a witness for the purpose of testing his memory, sincerity, etc., and this must be left largely to the discretion of the trial court, and if it affirmatively appears that there was no abuse of such discretion and no injury to the substantial rights of the defendant, on appeal the trial court will not be put in error. There was no error of a prejudicial nature committed by the court in this connection. Lowman v. State, 161 Ala. 47, 50 So. 43; Stevenson v. State, 18 Ala. App. 174, 90 So. 140.
For the reasons above stated the trial court committed no reversible error in allowing the solicitor for the state on cross-examination to ask the witness Hussey, "Have you ever seen a still in your life?"
The remarks of counsel for the state objected to are within the bounds of legitimate argument as defined by the decisions of this court and the Supreme Court. Cross v. State, 68 Ala. 476; Mitchell v. State, 18 Ala. App. 471, 93 So. 46.
Charges numbered 1, 2, 3, and 4 were properly refused. There was ample evidence to convict the defendant if the jury believed the evidence beyond a reasonable doubt, and the defendant was not entitled to the affirmative charge in his behalf.
Charge 5 refused to the defendant states a correct proposition of law. The mere presence of the defendant at a still without evidence tending to connect him with its operation, control, or ownership is not sufficient upon which to predicate a verdict of guilt. Biddle v. State, 19 Ala. App. 563, 99 So. 59; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Guin v. State, 19 Ala. App. 67,94 So. 788.
In the instant case there was a conflict in the evidence, the state witness testifying to acts of the defendant tending to show that he was engaged in the operation of the still, and the defendant himself denying such acts and testifying that he had no connection with its operation or control or ownership, and that it was not on his premises or premises under his control.
The refusal of charge 5 was error. Refused charge 6 is a copy of charge 3 in Olden v. State, 176 Ala. 6, 58 So. 307. This charge was approved in the Olden Case, supra, and in many decisions of the Supreme Court. Bailey v. State, 168 Ala. 4,53 So. 298, 390; Carroll v. State, 130 Ala. 99, 30 So. 394.
Said charge reads in part as follows:
"If the jury are not satisfied beyond a reasonable doubt to a moral certainty and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant then they should find him not guilty."
Charges of a similar character have been criticized by the Supreme Court as not predicating the hypothesis of innocence which would require an acquittal upon the evidence in the case. Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State,205 Ala. 160, 87 So. 179; Ex parte State ex rel. Atty. Gen. (Baker v. State), 210 Ala. 320, 97 So. 903, in which the court says:
"It may be seriously questioned, however, that the refusal of such a charge would constitute reversible error, in view of the subsequent decisions of this court condemning charges of similar character as technically bad for not resting the hypothesis of innocence upon the evidence in the case."
But in any event the refusal of the charge was not prejudicial in view of the full and favorable oral instructions given by the court to the jury defining a reasonable doubt, and the burden and sufficiency of proof for conviction. Edwards Case, supra.
For the error indicated, the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded. *Page 396