Opinion
8 Div. 397.
August 4, 1931.
Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr., Judge.
Gaylon Frye was convicted of unlawfully possessing a still, and he appeals.
Affirmed.
The following charges were refused to defendant:
"3. I charge you, gentlemen of the jury, that if you believe the evidence in this case you should find the defendant not guilty under count No. 2 of the indictment."
"15. If the worm to the still at which the officers saw the defendant was owned by Clayton Owens and was at his house in his possession at the time the officers saw the defendant at the still, and was not owned by defendant and was not in his possession and if liquor could not be made on the parts of the still found by the officers without a worm then you should find the defendant not guilty.
"16. If the officers did not find the worm for the still at which they saw the defendant and if the worm for the still at that time was owned by Clayton Owens and was at his house in his possession and was not owned by the defendant and was not in his possession, and if liquor could not be made on the parts of the still found by the officers without the worm, then you should find the defendant not guilty."
Chas. P. Almon, of Tuscumbia, for appellant.
Section 4656 of the Code contemplates a complete still, and section 4657 only makes possession of a part of a still prima facie evidence of a complete still. There can be no conviction under section 4656 unless the jury believes beyond a reasonable doubt that the defendant was then and there in possession of a complete still. Charges 3, 15, and 16 should have been given. Bowden v. State, 23 Ala. App. 215, 123 So. 107; Pate v. State, 19 Ala. App. 642, 99 So. 833; McCormick v. State, 22 Ala. App. 577, 117 So. 911.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence for the state tended to prove that defendant and another were in possession of a whisky still in Lauderdale county, within three years before the finding of the indictment. The evidence tended to prove that all of the parts of the still were at the still place, except the worm and cap and the connecting pipe. These parts were not at the still place, and the still was not connected up, but there was evidence tending to prove that the defendant and his associate were preparing to distill whisky from two barrels of beer, which were at the place and ready for distillation. There was other evidence tending to prove that the parts of the still found in possession of defendant at the still place were suitable to be used for the purpose of manufacturing whisky, and it is very evident from the testimony that these parts were intended so to be used. Section 4757 of the Code of 1923 was enacted for just such a case as this. The defendant was found in possession of parts of a still, preparing it for the manufacture of whisky; the parts last to be connected and easy of concealment could not be found. Whether such missing parts were near and hidden or at another place and accessible to defendant when needed, they were in his possession, making a complete still, and the section above cited makes this a jury question.
Charge 3, as requested by defendant, was properly refused.
Charge 15 was not predicated on the evidence, and for that reason, if no other, was properly refused. Edwards v. State, 205 Ala. 160, 87 So. 179; Shepards Annotations, page 284 (Note 160). For the above reason charge 16 was properly refused.
The ruling of the court in overruling defendant's objection to the remark of the solicitor in his argument: "Gentlemen of the jury the defendant was breaking the law at that time" — this was a legitimate conclusion to be drawn from the evidence.
The excerpts from the court's oral charge to which exceptions were reserved are too fragmentary to permit a review.
There is no error in the record, and the judgment is affirmed.
Affirmed.