Appellant was convicted of the offense of distilling prohibited liquors. Code 1923, § 4627.
The case here is not complicated with any legal questions of difficulty. The evidence on behalf of the state, as disclosed by the bill of exceptions, was ample to support the verdict of guilt returned by the jury.
While the jury were deliberating on the case, and after they had been out for quite a while, they were, at their own request, brought back into court, where, in the presence of the defendant (appellant), they asked for some further instruction. Specifically, they asked the court a question as to the law, which he answered correctly.
In the above interview with the court, the jury made known the fact that they were having some trouble in reaching an agreement, whereupon the court charged them orally as follows:
"The law is that if there is any large greater number of the jury that have opposed to them a much less number of the jury one way or the other, that it may be upon considering it the lesser number should consider that if so many more, equally honest and equally sensible men as they are, should look at it in one light, if the opinion that they have, might consider whether that opinion was, *Page 272 whether they should have the same; in other words, if they might not be less right in the matter or less correct than those so larger number that look at it in the other light. That would apply either way, whether the decided majority is in the case. * * * Nobody is required to surrender his honest convictions, and honest convictions. Every word that I have uttered to you it is accompanied by that. No single juror if he has a conscientious conviction of his position in the matter, why he is not required to surrender that."
Exception was reserved by appellant to this portion of the court's charge.
Properly construed, the above language of the court does no more in our opinion, than say to the jury that in conferring together, if they find that a majority are of one opinion, they may take such fact into consideration. This, it seems, is permissible.
In a well-considered opinion Judge Henry B. Foster wrote for this court, a portion of a charge very similar to the one quoted above — in fact not distinguishable in substance, though the language may have been somewhat clearer — was held in the case of Bufkins v. State, 20 Ala. App. 457, 103 So. 902, to have been properly given to the jury. We cannot improve upon the discussion by Judge Foster in the case cited, and, upon the authority of the holding in that case (certiorari denied by Supreme Court, 212 Ala. 638, 103 So. 906), we hold here that the trial judge did not err in charging the jury as we have quoted above.
We have examined the exceptions reserved on the taking of testimony. The ruling underlying each of them involves only elementary principles of law, and does not seem to merit discussion by us. In none of the said rulings is there prejudicial error.
The written charges refused to appellant were each, where not manifestly and patently incorrect, covered by, and the same principles of law included in, the oral charge of the court.
I find nowhere any prejudicial error, and the judgment should in my opinion be affirmed.
Majority Opinion.