Opinion
5 Div. 532.
January 20, 1925.
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Jim Aldridge was convicted of possessing a still, and he appeals. Affirmed.
The indictment is as follows:
"The grand jury of said county charge that before the finding of this indictment Jim Aldridge did possess or have in his possession, a still, apparatus, appliance, device, or substitute therefor, to be used for the purpose of manufacturing alcoholic, spirituous, or malt liquors contrary to law, against the peace and dignity of the state of Alabama."
Refused charge L is as follows:
"L. I charge you, gentlemen of the jury, that the humane provision of the law is that there should not be a conviction upon the evidence, unless to a moral certainty it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the acts, then the guilt of the accused is not shown by that full measure of proof which the law requires, and you should find the defendant not guilty."
Saxon Pitts, of Clanton, for appellant.
The indictment is insufficient. Abrahams v. State, 18 Ala. App. 252, 89 So. 854; Dix v. State, 8 Ala. App. 338, 62 So. 1007; McReynolds v. State, 18 Ala. App. 173, 89 So. 825. Charge L should have been given. Gay v. State, 19 Ala. App. 238, 96 So. 646; Tatum v. State, ante, p. 24, 100 So. 569; Price v. State, ante, p. 201, 101 So. 300.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The indictment is in the usual form, charging the defendant with having in his possession a still, apparatus, appliance, device, or substitute therefor, to be used for the purpose of manufacturing alcoholic, spirituous, or malt liquors, contrary to law. There was demurrer to the indictment on several grounds, but we have so often held similar indictments to be sufficient as not here to require discussion. Taylor v. State, 17 Ala. App. 579, 88 So. 205; Barnes v. State, 18 Ala. App. 344, 92 So. 15.
The finding and return of an indictment does not constitute former jeopardy, and, hence, the defendant's motion to quash the indictment was properly overruled, and the state's demurrer to the plea setting up the fact of the return of an indictment was properly sustained.
All of the facts and circumstances, conversations at the still, at the time of the possession and related thereto, were a part of the res gestæ and admissible in evidence. The court so ruled without error.
Charge L is never a good charge, unless predicated on circumstantial evidence. McKenzie v. State, 19 Ala. App. 319, 97 So. 155.
The other refused charges, where they stated correct propositions of law, were fairly and fully covered by the court in his oral charge to the jury.
We find no error in the record, and the judgment is affirmed.
Affirmed.