Public-domain · open source
OpenJurist

31 Ala. App. 362

17 So.2d 776

Yates v. State

Alabama Court of Appeals

Decided March 21, 1944

Alabama Court of Appeals · decided 1944-03-21

Key passage — most relied on by later courts

““ ‘It is further contended that a reversal is due because of the alleged severity of the punishment imposed. Since the sentence was within the statutory limit, however, it must be here affirmed. It was the prerogative of the trial court to assess such punishment, within legal limits, as sound discretion should dictate. Sales v. State, 31 Ala.App. 19 , 12 So.2d 101 certiorari denied, Id., 244 Ala. 30 , 12 So.2d 103 ; Wood v. State, 28 Ala.App. 464, 465 , 187 So. 250, 251 . Nothing is shown to indicate an abuse of this discretion.’ “The above is a correct statement of the doctrine governing which is that where a trial court acts within the limits provided by statute in imposing punishment, his discretion is not reviewable or revisible. Wood v. State, 28 Ala.App. 464 , 187 So. 250 ; Yates v. State, 31 Ala.App. 362 , 17 So.2d 776 ; Ganey v. State, 36 Ala.App. 570 , 60 So.2d 861 .””

quoted by 2 later decisions, including Lee v. State, 55 Ala. App. 323 - Smith v. State

Relies on Ex Parte Grimmett · 29 Ala. App. 349 - Wilkins v. State · 29 Ala. App. 399 - Robertson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1944-03-21

How this case has been cited

Cited by 24 later decisions — most recently August 1990

24 state decisions

100194419501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SIMPSON, Judge.

¶1 The conviction was in a dry county for violation of the prohibition law. Code 1940, Tit. 29, § 98.

¶2 Locked in the “turtle back” of his automobile were thirty-six pints of whiskey which the defendant stated “belonged to him” — said “it was his whiskey.” He produced the key with which to unlock the compartment. This evidence was without dispute. The defendant elected not to offer any testimony, but rested upon conclusion of the State’s case.

¶3 Under the prevailing rule, there was no error in giving for the State the general affirmative charge, duly requested in writing. Where the evidence — as h,ere— is clear, positive and without dispute in proof of every element of the offense, the general affirmative charge for the State may properly be given. Holmes v. State, *36329 Ala.App. 594, 199 So. 736; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Martin v. State, 3 Ala.App. 90, 58 So. 83; Bowden v. State, 19 Ala.App. 377, 97 So. 467; McCleskey v. State, 28 Ala.App. 97, 179 So. 394. As pointed out in Holmes, above, the courts do view with disfavor the giving of such a charge. See also Ex parte Grimmett, supra. Here, however, we cannot condemn as error the giving thereof.

¶4 It is further contended that a reversal is due because of the alleged severity of the punishment imposed. Since the sentence was within the statutory limit, however, it must be here affirmed. It was the prerogative of the trial court to assess such punishment, within legal limits, as sound discretion should dictate. Sales v. State, Ala.App., 12 So.2d 101, 1 certiorari denied, Id.,244 Ala. 30, 12 So.2d 103; Wood v. State, 28 Ala.App. 464, 465, 187 So. 250, 251. Nothing is shown to indicate an abuse of this discretion.

¶5 True, the punishment, in addition to the fine, was twelve months hard labor. Nevertheless, this length of sentence was warranted for a third conviction (Code 1940, Tit. 29, § 99), and on appeal we presume that the trial court in imposing such sentence acted wholly within the law. “Omnia rite acta praesumuntur.” Robertson v. State, 29 Ala.App. 399, 401, 197 So. 73, certiorari denied, 240 Ala. 51, 197 So. 75.

¶6 No error is shown, so the judgment must be affirmed.

¶7 Affirmed.

1

¶8 Ante, p. 19.

/31/alaapp/362 · .json · Public domain