Opinion
4 Div. 783.
May 25, 1943.
Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.
Fred McGilvary was convicted of distilling, and he appeals.
Affirmed.
M.I. Jackson and R.H. Bennett, both of Clayton, for appellant.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
The evidence was conflicting as to defendant's presence at and operation of the still. The affirmative charge was therefore, properly refused. Leonard v. State, 150 Ala. 89, 43 So. 214; Bradley v. State, 11 Ala. App. 329, 66 So. 820; Elmore v. State, 21 Ala. App. 410, 109 So. 114; Gist v. State, 22 Ala. App. 475, 117 So. 2. The State having established a prima facie case, evidence of the alibi was properly submitted to the jury. Huston v. State, 237 Ala. 222, 186 So. 182; Rodgers v. State, 27 Ala. App. 288, 171 So. 386. Admission of evidence of finding, around defendant's place, of bottles which smelled of liquor, and large quantities of sugar and corn, was not error. Nichols v. State, 18 Ala. App. 184, 89 So. 847; Smith v. State, 23 Ala. App. 405, 126 So. 185; Sandlin v. State, 19 Ala. App. 583, 99 So. 784; Ex parte Sandlin, 211 Ala. 153, 99 So. 786.
The appeal is from a conviction of illicit distilling.
The evidence adduced by the State satisfactorily sustained the charge. The defendant was not arrested at the scene and, on trial, sought to rest his defense upon proof of an alibi.
A jury question was thus presented and his requested charge for a directed verdict was correctly refused. Rogers v. State, 27 Ala. App. 288, 171 So. 386; Hushton v. State, 237 Ala. 222, 186 So. 182.
Immediately after the raid, the officers went to the defendant's house and found a large quantity of sugar (700 pounds) in sacks similar to the 100 pound sack of sugar found at the still. The trial court was correct in permitting such proof, and the defendant's contention of error here is without merit. Smith v. State, 23 Ala. App. 405, 126 So. 185; Sandlin v. State, 19 Ala.App, 583, 99 So. 784.
Likewise, under the same principle, proof that in the defendant's house there was a quantity of jars, jugs and bottles having the odor of moonshine whisky was also permissible. Smith and Sandlin, supra.
The defendant, according to the testimony of the raiding officers, was operating the still and at the time of the raid was handling a jug of the whisky. This duly identified jug of whisky was also properly admitted in evidence at the trial. Cusimano v. State, ante, p. 99, 12 So.2d 418.
All questions reserved, deserving of comment, have been considered hereinabove. We have carefully studied the record and can find no error. The judgment is affirmed.
Affirmed.