CAMPBELL v. STATE

(101 So. 84) CAMPBELL v. STATE. (6 Div. 304.) (Court of Appeals of Alabama. June 3, 1924. Rehearing Denied June 30, 1924.) 1. Criminal law &wkey;>4l9, 420(11) — Testimony • as to conversation with one not examined as witness properly excluded as hearsay. Testimony as to conversation with one not examined as witness held properly excluded as hearsay. 2. Criminal law ¡@^>1036(8) — Evidence not reviewable in absence of request for affirmative charge or other test of sufficiency in court below. ' Where affirmative charge was not requested, nor sufficiency of evidence otherwise tested in court below, evidence is not reviewable on appeal. Appeal from Circuit Court, Winston County; Ernest Lacy, Judge. Ben Campbell was convicted of possessing a still, and appeals. Affirmed. Gray & Powell, of Jasper, for appellant. There was not sufficient evidence to submit the case to the jury. Defendant should have had the affirmdtive charge. Seigler v. State, 19 Ala. App. 135, 95 South. 563. Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen., for the State. No charges were requested by defendant, and the sufficiency of the evidence is not presented for review. [MAJORITY — EOSTER, J.] EOSTER, J. The appellant was convicted for having in his possession a still to be used for the purpose of manufacturing prohibited liquors. The court properly sustained tbe state’s objection to the question propounded to defendant’s witness Shade Campbell, calling for a conversation between the witness and one Burton Stewart who was not examined as a witness. The evidence elicited was clearly hearsay and not admissible. Welsh v. State, 96 Ala. 92, 11 South. 450; Mitchell v. State, 114 Ala. 3, 22 South. 71; Stone v. State, 105 Ala. 60, 17 South. 114. Where the affirmative charge Was not requested, nor the sufficiency of the evidence tested in any other manner in the court below, the evidence is not reviewable on appeal. Parcus v. State, 19 Ala. App. 592, 99 South. 662, and. authorities there cited. We find no error in the record. The judgment of the circuit court is affirmed. Affirmed. ©amlTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes