Hammond v. State

BRICKEN, P. J.

The court at the request of defendant, in writing, gave the affirmative charge in favor of the defendant as to the first count of the indictment.

As to the offense charged in the second count of the indictment the trial court had jurisdiction of the subject-matter and of the person. There was some evidence tending to show the guilt of this appellant of the offense charged in the count and the question of the sufficiency of the evidence to authorize the verdict of the jury in finding the defendant guilty is not presented for the consideration of this court, as the affirmative charge for defendant, as to the second count, was not requested, nor was there a motion for a new trial. The rule is, that where the evidence is deemed insufficient to warrant a conviction, a ruling of the trial court on that proposition must be properly invited (usually by special instruction requested) in order to invoke or justify a review of the question, so raised in the court below, by this appellate court. Such is the settled rule, on principle and in practice, by which this court is bound. Knapp v. McBride, 7 Ala. 19; Skinner v. State, 30 Ala. 524; Hubbard v. State, 72 Ala. 164; Dentler v. State, 112 Ala. 70, 20 So. 592; Bowden v. State, 91 Ala. 61, 8 So. 694; Ex parte Knight, 61 Ala. 482; Watts v. State, 204 Ala. 372, 86 So. 70; Moragne v. State, 16 Ala. App. 26, 74 So. 862; Morrissette v. State, 16 Ala. App. 32, 75 So. 177; Strickland v. Town of Samson, 16 Ala. App. 592, 80 So. 166; Marshall v. State, 18 Ala. App. 46, 88 So. 369; Baker v. State, 18 Ala. App. 48, 88 So. 370; Wade v. State, 18 Ala. App. 322, 325, 92 So. 97; Pritchett v. State, 18 Ala. App. 628, 93 So. 341.

There were several exceptions reserved to the rulings of the court upon the testimony, all of them relating to the evidence of two accomplices; Nabors and Iiatledge. The appellant took the position in the lower court, and here argues, that the accomplices were incompetent to testify. This insistence is untenable. We know of no law or rule of evidence, in cases of this character, which renders an accomplice incompetent as a witness. The statute does provide that a conviction of felony cannot be had on the testimony of an accomplice, unless the evidence given by such accomplice be corroborated by other evidence tending to connect the accused with the commission of the offense. This, of course, cannot mean that the accomplice is incompetent to testify as a witness as here contended. As hereinabove stated, the question of the sufficiency of the evidence to justify a conviction is not presented, as no ruling on this question was invoked in the lower court. Authorities, supra.

Charges 1 and 2 refused to the defendant singled out a part of the evidence; for this reason they were properly refused, and said charges were not predicated upon the evidence adduced upon this trial. Gilchrist v. State, 20 Ala. App. 307, 101 So. 634.

Refused charge 3 was not predicated opon the evidence; moreover, the substance of this charge was fairly and substantially covered by given charge 3; for these reasons it was properly refused.

Charge 4 was properly refused. It required the court to charge the jury as.a matter of law that under the evidence in the case the still in question was not suitable to make liquor on, and this the court was without authority to do as there was evidence tending to show that it was a complete still, etc. In this connection witness B. R. Blair testified:

“I am the sheriff of this county. I arrested the defendant some time ago. They had left the still when we arrested them coming in. I could see a light in the direction of the still. We found a still and three or four barrels of beer, a still complete, and a block of ice. There was a furnace which was still hot, a fire under the furnace, and the cap was removed, and the worm was hid off about 8 or 10 feet. It looked to be a 40 or 50 gallon still, etc.”

This evidence and other of like import was introduced without objection. The mere fact that defendant and his associates failed to make whisky on the still tvould not justify or warrant the court to give the charge in question. Moreover, there was evidence tending to show that the failure of the three men to succeed in making whisky was due to their lack of experience and knowledge as to how whisky is made or manufactured, each of them having given evidence tending to show that fact.

The record appears regular in all things.

Affirmed.