
    Dunn v. The State.
    
      Violating Prohibition Lmo.
    
    (Decided June 9, 1913.
    62 South. 996.)
    1. Charge of Court; Effect of Evidence. — A charge asserting that the statute, making the keeping of liquors in a building not used exclusively as a private residence prima facie evidence that they were kept for sale, is not a charge on the effect of the evidence since it means only that if the evidence discloses such a fact, it is sufficient on its face to authorize a conviction, and does not have the effect of instructing the jury that any fact • has been proved, or that the evidence does or does not establish certain facts in dispute.
    2. Same.- — Such a charge does not authorize a conviction before the jury is satisfied beyond a reasonable doubt of defendant’s guilt, in view of the fact that the court expressly told the jury that they could not convict unless they were satisfied of his guilt' beyond a reasonable doubt.
    3. Same; Covered by Those Given. — It is not error to refuse requested charges that'are substantially covered by written charges given.
    Appeal from Walker Law and Equity Court.
    Heard before Hon. T. L. Sowell.
    Earl Dunn was convicted of violating tbe prohibition laws, and be appeals.
    Affirmed.
    Ernest Lacy, for appellant.
    Tbe charge given for tbe state was erroneous as a charge upon tbe effect of evidence, and as authorizing a conviction without proof of guilt beyond a reasonable doubt. — Huffman v. State, 29 Ala. 40; Morrison v. State, 151 Ala. 115; Whittaker v. State, 105- Ala. 34; Pearson v. State, 99 Ala. 148; Heath v. State, 99 Ala. 179; Buchanan v. State, 109 Ala. 11. Defendant was entitled to have the jury instructed as requested by him.
    B. C. Bbickedl, Attorney General, and W. L. Mabtin, Assistant Attorney General, for the State.
    The charge complained of simply instructed the jury as to what made out a prima facie case authorizing a conviction, and did not assert that any fact was proven, or that the jury must find any fact to exist, and hence, was not upon the effect of the evidence. In other charges, the court plainly instructed the jury not to convict unless they believed the defendant’s guilt beyond a reasonable doubt. The other charge requested were covered by defendant’s given charges.
   THOMAS, J.

The defendant was charged with selling, offering for sale, keeping for sale, or otherwise disposing of prohibited liquors. There was evidence for the state tending to show, among other things, that on the day of and shortly before his arrest defendant sold a pint of whisky to one of the state’s witnesses, and that his premises (the store in which he was conducting a restaurant and soda fountain) were searched and 11% pints of liquor found therein. The court in its oral charge, after instructing the jury on the subject of a sale, then proceeded to instruct them on the subject of keeping for sale as follows: “The Legislature has passed a rule of evidence in that respect, and I will read that to you for guidance and try to explain it to you. It is found in what is known as the Fuller Bill, passed at the same session of the Legislature as the act I read you. Section 4 reads: “That the keeping of liquors or beverages that are prohibited by the law of the state to be manufactured, sold, or otherwise disposed of, in any building not used exclusively for a dwelling, shall be prima facie evidence that they are kept for sale or with the intention to sell the same contrary to law.’ That is a rule of evidence that the Legislature has legislated into laAV that was not the law before the Legislature passed the act and made it the law. I do not know that you understand the term ‘prima facie’ evidence. Prima facie are íavo Latin words meaning at first view or on its face (prima means first, and facie means face), on the first blush or first view, so it simply means that if the evidence shows that liquors were kept in a building not used exclusively for a residence, if that was shown, and the evidence closed then and no other evidence was offered, it is sufficient on its face to iva/rrant a convictionThe defendant excepted to the last portion of this charge, that portion which is in italics, and urges in brief that it is erroneous: First, because it, as insisted, is a charge upon the effect of the evidence, prohibited by section 5362 of the Code; and, second, because it fails to state that the evidence of guilt must be so strong as to convince the jury beyond a reasonable doubt that defendant kept such liquors for sale or other unlawful purpose.

A charge upon the effect of the evidence is a charge which instructs the jury that certain facts in issue have been proved or not proved, or that certain evidence in the case does or does not establish a certain fact or facts in dispute, or directs the jury Avhat their finding on an issue of fact must be if they believe the evidence in the case, etc. See citations to section 5362 of the Code. The charge criticised is clearly not a charge upon the effect of the evidence but one merely in explanation and illustration of the meaning of a rule of evidence, given on a hypothesized state of facts. It was neither an instruction to the .jury that the evidence showed that defendant kept prohibited liquors in a building not used exclusively as a dwelling, nor Avas it an instruction that, if the evidence did so show, the jury must find the defendant guilty; but it ivas the assertion of a proposition of law given in defining the rule of evidence mentioned, and correctly stated in effect that a jury would be warranted in finding a defendant guilty of keeping prohibited liquors for sale, not that they must do so, when the evidence showed that he kept such liquors in a building not used exclusively for a residence, and when there was no other evidence in the case. The laAv constitutes such evidence, when there is such a prima facie case and holds such facts, when established, sufficient to authorize a jury in believing beyond a reasonable doubt that a defendant is guilty. This is all that the charge undertakes to assert. Of course the evidence tending to establish such fact must do so to the satisfaction of the jury beyond a reasonable doubt, and even then, before they can convict, they must believe defendant guilty beyond a reasonable doubt. The charge does not assert otherwise, and that the jury did not understand otherAvise is made further clear from the fact that the court subsequently in its oral charge fully and correctly defined and instructed the jury upon the subject of reasonable doubt, and in this connection concluded as follows: “If you believe from the evidence beyond a reasonable doubt that defendant violated the law as I have read it to you, then it would be your duty to convict him, and if the evidence does not show that beyond a reasonable doubt, it would be your duty to acquit him.” We are of opinion that the jury were properly instructed, and that the criticisms of that portion of the oral charge which was excepted to are entirely without merit. — Pugh v. State, 4 Ala. App. 148, 58 South. 936.

The- only other error insisted upon is the refusal of the court to give written charge No. 3. Without considering possible defects in the charge, it is sufficient to say in justification of its refusal that it is covered by written charge 6 given at defendant’s request.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.  