Opinion
4 Div. 977.
April 11, 1933.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Walter Ford, alias Walter Spivey, was convicted of distilling, and he appeals.
Affirmed.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The evidence in this case was without dispute or conflict. It consisted of the testimony of two state witnesses; the sheriff of the county and his deputy. The defendant offered no testimony, and at the conclusion of the state's case requested the affirmative charge upon the theory that the state had failed to make out a case against defendant. This charge was refused by the court and this action of the court presents the only question for decision on this appeal.
The testimony discloses, at the time and place in question the officers found a complete still of large capacity. The still was warm and had fire coals in the furnace; and nearby, there was a 65-gallon barrel of whisky and also two 10-gallon kegs of whisky, making a total of 85 gallons in all. Three men, one of whom was this appellant, were present near the still, which had just been run, and this defendant had a bucket of whisky in his hands which he dropped upon the ground when the sheriff commanded them to "halt." This defendant and the two other men ran away and escaped, when the officers made their presence known. The evidence shows he was arrested some time later. The conditions disclosed by the undisputed evidence which, as stated, tended to show that this appellant, in the nighttime, was at the still with a large quantity of whisky, and that he was carrying, or had in his hand a bucket full of whisky which he dropped and then ran away when the officers approached, coupled with other evidence of like import, made a jury question and rendered inapt the affirmative charge requested. This charge was refused without error. No error appearing the judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed.