Opinion
6 Div. 23.
June 16, 1931.
Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.
George Pulliam, Jr., and another, were convicted of unlawfully possessing a still, and they appeal.
Affirmed.
Davis Curtis, of Jasper, for appellants.
The evidence of possession of a still was entirely insufficient to submit the case to the jury. Seigler v. State, 19 Ala. App. 135, 95 So. 563; Suggs v. State, 22 Ala. App. 311, 115 So. 289; Martin v. State, 21 Ala. App. 230, 106 So. 873; Guin v. State, 19 Ala. App. 67, 94 So. 788; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Leith v. State, 20 Ala. App. 251, 101 So. 336; Wilson v. State, 20 Ala. App. 62, 100 So. 914; Weaver v. State, 22 Ala. App. 162, 114 So. 67. There was no connection between the still destroyed and the backings, and it was error to allow the state to prove that some backings were found near an old house some 200 yards from the residence of defendants. Wilson v. State, supra; Leith v. State, supra; Vintson v. State, 22 Ala. App. 338, 115 So. 695; Pendley v. State, 23 Ala. App. 539, 128 So. 589.
Thos. E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty. Gen., for the State.
Evidence that backings were found on the premises of defendants was relevant and competent on the trial for possessing a still. Slaton v. State, 21 Ala. App. 422, 109 So. 118; Sikes v. State, 21 Ala. App. 220, 107 So. 800; Jones v. State, 18 Ala. App. 626, 93 So. 332; Gowen v. State, 18 Ala. App. 542, 93 So. 281; Peek v. State, 19 Ala. App. 370, 97 So. 374. Where there is any evidence tending to establish guilt, the court cannot be put in error for refusal to give the affirmative charge. Plyler v. State, 21 Ala. App. 320, 108 So. 83.
These two defendants and another, who was unrecognized and unidentified, were seen at a whisky still which was being set up preparatory to the manufacture of whisky. The still was located in a wood near a branch and about one-half mile from where defendants lived. These two defendants were identified by one eyewitness as two of the parties at the still, and this testimony was corroborated by circumstances tending to connect the defendants. The acts of the defendants in and about the still testified to by the state's witnesses, coupled with a precipitate flight on discovery, were sufficient facts upon which to base a verdict of guilt.
It appears from the evidence that no whisky had been manufactured at this still, but preparation was in progress for a "run." It was also shown that "backings" is the "last run of whisky that they use in making the next run." Over the objection and exception of defendants, the state was allowed to prove that some of these "backings" were found, at the time of the search and destruction of the still, behind the barn at the house of one of these defendants. Considering all of the facts, this was a circumstance tending to connect defendants with the possession of the still. Parmer v. State, 20 Ala. App. 233, 101 So. 482; Slaton v. State, 21 Ala. App. 422, 109 So. 118.
We find no error in the record, and the judgment is affirmed.
Affirmed.