Opinion
4 Div. 899.
May 16, 1933. Rehearing Denied September 12, 1933.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
James W. Baker was convicted of distilling prohibited liquors, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Baker v. State (4 Div. 736) 149 So. 859.
Defendant, as a witness, testified that he was at the still on the day it was raided, but had nothing to do with its operation and no interest in it, that he had been hunting, and that "the still was on Mr. Parrish's land, I guess." On cross-examination he testified: "I ran away from it" — the still. "I was hunting squirrels. As to whose land the hunting was on, I reckon it was Mr. Parrish's. It was not my land. I was not cultivating it." He was then asked by the solicitor: "Did you have written permission to hunt on that land?" Defendant objected to the question on general grounds and that "defendant was being tried for running a still and not violating the game law." The court overruled the objection, and the solicitor again propounded the question; the court again overruling the objection. The witness answered: "No, sir, I guess not. * * *" The solicitor propounded this question: "Haven't you been convicted in Barbour County for grand larceny?" Objection to this question was overruled, and the witness answered: "Yes, sir."
McDowell McDowell, of Eufaula, for appellant.
The attempt by the state to prove that defendant was violating the game law was for the purpose of prejudicing the jury against the defendant, and it was error for the court to allow the question. So also of the question to show defendant had been convicted of grand larceny. While the defendant admits he was at the still, there was no evidence to show that it was his still. The affirmative charge should have been given at defendant's request. Dickey v. State, 22 Ala. App. 375, 115 So. 848. There was also error in failure to grant defendant's motion for a new trial. Bolton v. State, 23 Ala. App. 573, 129 So. 311; Burnett v. State, 21 Ala. App. 274, 107 So. 321; Biddle v. State, 19 Ala. App. 563, 99 So. 59.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
Where a defendant is shown to have been present at a still in operation and to have exercised any act of domination over it or done any act in connection with its operation, the evidence is sufficient to support a conviction.
There was evidence tending to prove that this defendant and a negro were together at a whisky still on a branch in Barbour county; that it was on land belonging to some one else; that he and defendant were alone at the still; that the still was in operation and whisky running; that defendant was seen to place a jar under the spout in which the whisky was running; that upon being approached by the officers the defendant fled. This was sufficient evidence upon which to base a verdict of guilt.
The above holding is not in conflict with the holding in Dickey v. State, 22 Ala. App. 375, 115 So. 848, where this court held that a new trial should be granted. In that case the defendant was present at the still and caught some of the whisky running out and tasted it, and, when the officers came, he ran. In this case the defendant did more than catch some of the whisky and taste it. He placed under the spout a jar into which the whisky was to run. This was a part of the process of manufacture, and, while the difference in the facts in the two cases may be slight, it is a very distinct difference.
The manufacture of whisky consists of the making of the mash, putting it into the still, preparing and connecting the still, the building of the fire under the still, and the preservation of the liquor as it is distilled and runs from the spout. Any act tending to prove any of the above facts as having been done by the defendant would authorize a jury to find that defendant participated in the manufacture. On the other hand, if a person is merely present at a still and has no further connection with it other than to take a drink of the whisky after it was made, he would not be guilty. If, as in this case, he is found at a still, in an isolated place, with only one companion, with the still running whisky and he placing a receptacle to catch the run and on a warning from his companion of the approach of the officers fled, the case is for the jury. Hill v. State, 22 Ala. App. 422, 116 So. 411, Elmore v. State, 21 Ala. App. 410, 109 So. 114.
The questions asked defendant by the state, to which exceptions were reserved, were asked on cross-examination, in which a broad latitude should always be allowed. In these rulings of the court there was no error.
We find no error in the record, and the judgment is affirmed.
Affirmed.