Allen v. State

Alabama Court of Appeals

Allen v. State

92 So. 18, 18 Ala. App. 346, 1922 Ala. App. LEXIS 64

Alabama Court of Appeals·Decided January 10, 1922·No. 5 Div. 380.·Published·Cited by 4 cases

Opinion

BRICKEN, P. J.

The indictment contained two counts. Demurrers were interposed to the second count. This count meets every ■requirement of the statute, and the demurrers were properly overruled. The .defendant was convicted “as charged in the indictment,” and was duly sentenced to serve a term of imprisonment in the penitentiary of not less than 2 years nor more than 3% years.

[1] This court, sitting en bane, has read the entire record, and as a whole have considered this ease and have reached the conclusion that the evidence adduced upon the trial presented a jury question; therefore the refusal of the affirmative charge requested by defendant in writing was without error. Smith v. State, 16 Ala. App. 546, 79 South. 802.

[2-5] No other special charges were refused, nor was there any exception reserved to the oral charge of the court. There was no motion made for a new trial, and the remaining questions presented relate to the ruling of the court upon the testimony. Witness Lane, the sheriff, testified that he searched the premises of defendant, and the solicitor asked him: “What did you find?” To this question the defendant objected, but *347 the objection was general, no grounds being stated, and for this reason, if for no other, the court properly overruled same; the general rule being that, where a question calls for competent evidence, it is not subject to a general objection. It is clear that the evidence called for was competent. The motion to exclude the answer was made without stating the grounds of the motion, and the court properly overruled same. The answer of the witness was responsive to the question and was material, he having stated:

“I found a box about five feet long by four and a half feet wide and a foot or a foot and •a half deep. There was beer in the box. It was sitting right where there was a cut out place in the ground by the side of the branch, and there was two buggy axles across that, and this box was on top of that, and this box was entirely full of beer, it was -fermenting, and a fire had been under it, under this box. It had a copper bottom. I found a crooked pipe which came out of this box over into a condenser and this worm starts and that came into a trough. That is a piece of copper. It is part of a still, a still you make whisky with. * * * I tasted of that beer, I know what beer is. I drank some of it, it would make a man drunk,” etc.

The several objections to this testimony and the motions to exclude are subject to the same criticism as above stated, and the ■court committed no error in its rulings in this connection. No other questions are presented for review. The record is free from -error. It follows that the judgment of the circuit court must be affirmed.

Affirmed.

Footnotes

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BRICKEN, P. J.

The indictment contained two counts. Demurrers were interposed to the second count. This count meets every ■requirement of the statute, and the demurrers were properly overruled. The .defendant was convicted “as charged in the indictment,” and was duly sentenced to serve a term of imprisonment in the penitentiary of not less than 2 years nor more than 3% years.

[1] This court, sitting en bane, has read the entire record, and as a whole have considered this ease and have reached the conclusion that the evidence adduced upon the trial presented a jury question; therefore the refusal of the affirmative charge requested by defendant in writing was without error. Smith v. State, 16 Ala. App. 546, 79 South. 802.

[2-5] No other special charges were refused, nor was there any exception reserved to the oral charge of the court. There was no motion made for a new trial, and the remaining questions presented relate to the ruling of the court upon the testimony. Witness Lane, the sheriff, testified that he searched the premises of defendant, and the solicitor asked him: “What did you find?” To this question the defendant objected, but *347 the objection was general, no grounds being stated, and for this reason, if for no other, the court properly overruled same; the general rule being that, where a question calls for competent evidence, it is not subject to a general objection. It is clear that the evidence called for was competent. The motion to exclude the answer was made without stating the grounds of the motion, and the court properly overruled same. The answer of the witness was responsive to the question and was material, he having stated:

“I found a box about five feet long by four and a half feet wide and a foot or a foot and •a half deep. There was beer in the box. It was sitting right where there was a cut out place in the ground by the side of the branch, and there was two buggy axles across that, and this box was on top of that, and this box was entirely full of beer, it was -fermenting, and a fire had been under it, under this box. It had a copper bottom. I found a crooked pipe which came out of this box over into a condenser and this worm starts and that came into a trough. That is a piece of copper. It is part of a still, a still you make whisky with. * * * I tasted of that beer, I know what beer is. I drank some of it, it would make a man drunk,” etc.

The several objections to this testimony and the motions to exclude are subject to the same criticism as above stated, and the ■court committed no error in its rulings in this connection. No other questions are presented for review. The record is free from -error. It follows that the judgment of the circuit court must be affirmed.

Affirmed.

Footnotes

Allen v. State, 92 So. 18, 18 Ala. App. 346, 1922 Ala. App. LEXIS 64 (Ala. Ct. App. 1922).

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Opinion

Footnotes

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