Opinion
6 Div. 930.
March 24, 1931.
Appeal from Circuit Court, Lamar County; Ernest Lacy, Judge.
Carlos Ward was convicted of distilling, and he appeals.
Affirmed.
In argument to the jury the state's solicitor made the following statement, defendant's objection to which was overruled: "The defendant has brought in his Aunts and Uncles and Mother-in-law and brothers-in-law, or words to that effect, to put something over on the jury."
These charges were refused to the defendant:
"2. The Court charges the jury, that it is a human provision of the law, that if the facts, and circumstances, surrounding this case, can be reasonably reconciled, with the theory, that some person other than the defendant, and not the defendant, himself, committed the offense, with which he is charged, you should find him not guilty.
"3. The Court charges the jury that under the evidence in this case your verdict should be not guilty."
"6. The court charges the jury that if it is reasonably possible for you from the evidence to reconcile the facts and circumstances of this case, with the theory that some person other than the defendant himself, made the liquor, on the occasion, with which the defendant is charged with making or manufacturing the liquor, or that he participated in, or that he aided or contributed to the making of the liquor then you should not convict the defendant of making or manufacturing liquor but you should find him not guilty."
Charge 7 is the same in substance as charge 6, except that it has reference to the offense embraced in the second count of the indictment (possessing a still).
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
In the case of Carr v. State, 17 Ala. App. 539, 85 So. 852, this court discussed the rule as to admission of confessions in a criminal case and defined the necessary predicate for the admission of this character of evidence.
In the case at bar the principal insistence of error appears to be rested upon the exceptions reserved to the court's rulings in admitting evidence of inculpatory statements, in the nature of confessions, without a proper predicate. In this, the appellant cannot be sustained. It is clearly apparent that the trial court adhered to the necessary rule of evidence announced in the Carr Case, supra, and in each instance required the state to prove a proper predicate for the admission of evidence as to the alleged confessions of the accused. These predicates as they appear in the record are full and complete and met every requirement. Before the admission of this evidence the corpus delicti had been fully proven without dispute, evidence of confessions by the accused was therefore admissible, and no error appears in any of the court's rulings in this connection.
Upon the trial the defendant introduced as witnesses, to testify in his behalf, numerous of his kinspeople. The argument of the solicitor to the jury, to which objections were interposed, was founded upon this evidence, and the court properly ruled the argument was legitimate, and the statements by the solicitor were mere deductions based upon the evidence which had been adduced.
There was no exception to the court's oral charge; nor was it susceptible of objection. It covered the law applicable to this case and was well stated. In addition thereto numerous special charges were given at the instance of defendant.
Refused charge 2, as it appears in this record, is involved and unintelligible; it is not predicated upon the evidence, and for other reasons was properly refused.
Charge 3, refused to defendant was not in point; the evidence was in conflict and presented a jury question. This charge was affirmative, and its refusal was without error.
Refused charge 5 had reference only to the offense charged in count 2 of the indictment. The accused was convicted by the jury under count 1, and this verdict operated as an acquittal of the offense to which this charge alluded. This, if for no other reason, renders the refusal of the charge proper and without error, as no injury to the accused followed as a result of its refusal.
Refused charges 6 and 7 were bad, if for no other reason, because of the use of the term "possibility." There is a wide difference between possibility of innocence and probability of innocence. Sims v. State, 100 Ala. 23, 14 So. 560; Nichols v. State, 100 Ala. 23, 14 So. 539; Bain v. State, 74 Ala. 38.
After a careful and attentive consideration of this entire record, we are of the opinion that this appellant was accorded a fair and impartial trial in the court below, and that no error intervened during the trial. As stated, under the conflicting evidence, a question of fact only was involved, and this evidence we think was ample to justify the jury in returning its verdict, and sufficient to sustain the judgment of conviction pronounced and entered in the lower court. The judgment is affirmed.
Affirmed.