Opinion
5 Div. 164.
May 18, 1943. Rehearing Denied June 22, 1943.
Appeal from Circuit Court, Chilton County; Arthur Glover, Judge.
Ocie Barnett was convicted of distilling and possessing a still, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Barnett v. State, 244 Ala. 656, 15 So.2d 341.
Gerald Gerald, of Clanton, for appellant.
Mere presence of defendant at a still is not sufficient to convict him of possessing the still or manufacturing liquor, in absence of proof tending to show he owned the still or did some act reasonably calculated to assist in manufacture of liquor. Verdict of conviction contrary to great weight of evidence on such issue should be set aside. Williamson v. State, 20 Ala. App. 394, 102 So. 485.
Wm. N. McQueen, Acting Atty. Gen., and L.H. Brassell, Asst. Atty. Gen., for the State.
The facts shown — defendant's presence at the still, engaged in work around it, punching up the fire, putting water in flake trough, and doing other things in and about manufacturing liquor — established defendant's guilt. The motion for new trial was properly overruled. McFarland v. State, 22 Ala. App. 608, 609, 118 So. 500; Morgan v. State, 28 Ala. App. 516, 189 So. 85; Sharp v. State, 22 Ala. App. 81, 112 So. 460; Harris v. State, 27 Ala. App. 202, 169 So. 20.
Upon the trial of this case the jury returned a general verdict of guilty as charged in the indictment. The indictment contained four counts: (1) Unlawful possession of a still to be used for the purpose of manufacturing or distilling prohibited liquors, etc. (2) Distilling, making or manufacturing spirituous, alcoholic or malt liquors, etc. (3) Same as count 1. (4) Same as count 3.
The defendant was unattended with counsel at the main trial below, hence no exceptions were reserved. After conviction, however, and within the time provided by law, counsel for defendant made a motion for a new trial based upon several grounds, all of the same import, and to the effect that evidence adduced upon the trial was insufficient to sustain the judgment of conviction duly pronounced and entered. Therefore the only question here presented is one of fact. As to this we are unable to accord to the earnest insistence of counsel. The evidence without dispute fully established the corpus delicti for it was disclosed thereby that the three officers who testified for the State located the still in question. It was at that time in full operation and whiskey was being made and running from the still, and four gallons in a tub already made. This appellant was present at the still, and the tendency of the State's evidence was to the effect he was working at and around the still; punched up the fire in the furnace; poured water in the flake stand and ran trying to escape when the officers' presence nearby was discovered. He was captured, however, and thereupon arrested. One other person was with defendant at the still. The defendant's witness, one Grady Headley, testified that this appellant was in no manner interested in the still, nor was he working around and about it as testified to by the State's witnesses. In order to sustain the insistence of the defendant by putting the trial court to error for having overruled and denied the motion for a new trial, it would require of this court to substitute itself for the trial judge and jury who tried this case. This, of course, we cannot do. The evidence was in conflict, as stated. In our opinion it was sufficient to be submitted to the jury for determination and the action of the court in so doing, and in overruling and denying the motion for a new trial, was without error.
Affirmed.