The defendants, father and son, were jointly tried and convicted on a charge of possessing whisky. The whisky was found in the home of the son, and the father, an old man, was at that time visiting at the son's house. The old man, testifying in behalf of himself and his son, said that the whisky was his, and that his son had nothing to do with it. There was testimony tending to prove that the whisky was that of the son. Upon this statement of the father, the court ex mero motu, and without a request in writing, instructed the jury as follows:
"I instruct you that if you believe his (the father's) statement and the other evidence in the case, he (the father) is guilty, and it will be your duty to return a verdict against him."
This in effect was to charge the jury that if they believed the evidence they must find the defendant guilty. It is apparent that this charge is upon the effect of the evidence and is in direct conflict with Code 1923, § 9507, if the evidence is in conflict or affords conflicting inferences. It is true that the statement of the old father assumed entire responsibility for the possession of the whisky, but there were other facts and circumstances from which the jury might have inferred that the possession was alone in the son, and that the father's statement was fabricated in an attempt to save the son from conviction. Under this phase of the case we cannot say that the giving of the charge was error without injury. If left to themselves the jury might have acquitted the father. Code 1923, § 9507; Cole v. State, 16 Ala. App. 55, 75 So. 261; Doby v. State, 15 Ala. App. 591, 74 So. 724; L. N. R. R. v. Godwin, 191 Ala. 498, 67 So. 675. Moreover, juries are not authorized to return a verdict of guilt unless the evidence is believed beyond a reasonable doubt. This was omitted from the charge, and this omission in itself would render the charge erroneous.
The court, over the objection and exception of defendant, permitted the state to introduce a certain jug which had been used in another case. This testimony was in rebuttal of the testimony of defendant that the jug introduced as having been found in possession of defendant was the same as that used by the state in another case. There was no error in this. The fact that this testimony was permitted after the evidence had closed was within the sound discretion of the court.
There is no merit in other exceptions. For the error pointed out, the judgement as to James M. Howard, Sr., is reversed and the cause is remanded. The judgment as to James M. Howard, Jr., is affirmed.
Reversed in part, and affirmed in part. *Page 90