Opinion
8 Div. 724.
March 19, 1929. Rehearing Denied April 2, 1929.
Appeal from Circuit Court, Limestone County; James E. Horton, Judge.
Mose Horton, alias Mose Malone, was convicted of unlawfully having possession of a still for the purpose of manufacturing or distilling prohibited liquors and beverages, etc., and he appeals. Affirmed.
Certiorari denied by Supreme Court in Horton v. State, 219 Ala. 233, 121 So. 907.
Fred Wall and Thos. C. Pettus, both of Athens, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Appellant was convicted of the offense of unlawfully having in his possession a still, etc., to be used for the purpose of manufacturing or distilling prohibited liquors or beverages, etc.
We have carefully read the entire evidence and are of the opinion that under the rule laid down in the case of Wilson v. State, 20 Ala. App. 62, 100 So. 914, it made a case proper to be submitted to the jury, in the first instance, on the question of whether or not the articles found were of the kind denounced by law and were in the possession of the appellant for the purposes charged in the second count of the indictment — on which count he was, by the jury, found guilty. The general affirmative charge for the defendant should never be given, if there is any legal evidence, no matter how slight, tending to support the proper allegations made against him. In passing upon the propriety vel non of the refusal of such charge, under such circumstances, the weight and sufficiency of the evidence are not to be considered, either by the lower court, or this court; those matters are, on such consideration, solely for the jury.
We find nowhere any prejudicial error, and the judgment is affirmed.
Affirmed.