Blackstone v. State, 99 So. 323 (Ala. Ct. App. 1924). · Go Syfert
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Blackstone v. State, 99 So. 323 (Ala. Ct. App. 1924). Cases Citing This Book View Copy Cite
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Blackstone
v.
State.
6 Div. 273. [fn*].
Alabama Court of Appeals.
Jan 22, 1924.
Published opinion
99 So. 323
1924 Ala. App. LEXIS 47
W.F. Finch, of Jasper, for appellant. Where the state elects to prosecute for a specific offense, it is error to admit proof of a similar offense at a different time. McClure v. State, 148 Ala. 625 , 42 So. 813 ; Wickhard v. State, 109 Ala. 45 , 19 So. 491 . Where a person is being tried for having a still in his possession and for manufacturing prohibited liquors, and there is not evidence sufficient to convince the jury of either offense, the court should give the general affirmative charge for the defendant. Ballentine v. State, ante, p 261, 96 So. 732 ; Moon v. State, ante, p. 176, 95 So. 830 ; Seigler v. State, ante, p. 135, 95 So. 563 ; Knight v. State, ante, p. 296, 97 So. 163 ; Hanson v. State, ante, p. 249, 96 So. 655 ; Guin v. State, ante, p. 67, 94 So. 788 . Where a person is convicted for an offense and sentenced, he should be sentenced for a definite number of days at the legal rate per day to pay the cost of the prosecution, and a judgment which does not recite the amount of the cost, the number of days, and the rate per day is defective, requiring a reversal of the cause. Code 1907, § 7635; Wright v. State, 9 Ala. App. 79 , 64 So. 173 . Harwell G. Davis, Atty. Gen., for the State. No brief reached the Reporter.
Sameord.
Cited by 11 opinions  |  Published
SAMEORD, J.

Defendant was indicted under two counts — the first charged a manufacturing of whisky, and the second the unlawful possession of a still. The conviction was under the first count. There was testimony tending to prove that defendant was in possession of and operating the same still at the same place on November 16th or 17th and on December 1st. The state, on motion of defendant, elected to prosecute for the date fixed by the witnesses as December 1st. All of the testimony related to the possession of the same still by the same parties and at the same location. The crime of possessing a still is continuing in its nature, and, while only one conviction may he had for the same possession, evidence of the defendant’s possession of the same still on different days, is relevant as corroborating evidence, and evidence of the possession and operating of the same still at the same place on November 16th or 17th would be relevant to corroborate evidence of possession and operation on December 1st thereafter. Moreover, in this case no objection was interposed to the questions until the witness had answered. The objection came too late, and, mo proper objection having been interposed to[*583] the question, the motion to exclude was properly overruled.

It was also competent for. the state to show that on the night of December 1st, shortly after the still had been destroyed, the defendant had in his possession something like one-half gallon of whisky, which defendant said he got down at the still place, as tending to show that defendant was engaged in the manufacture of whisky.

Charges 1, 2, and 3 requested by the defendant call for an acquittal on the evidence and were properly refused; there being sufficient evidence, which, if believed beyond a reasonable doubt, was sufficient to convict.

Charge No. 6, omits the reasonableness of the doubt. It is not any doubt that justifies an acquittal. The doubt must be reasonable.

Charge 4 is covered by and substantially same as given charge 5.

That part of the judgment which sentences the defendant to “such additional time as is necessary to pay the costs in this behalf expended,” is erroneous. That part of the judgment is here annulled, and as corrected the judgment is affirmed.

Affirmed.