Opinion
6 Div. 304.
June 3, 1924. Rehearing Denied June 30, 1924.
Appeal from Circuit Court, Winston County; Ernest Lacy, Judge.
Ben Campbell was convicted of possessing a still, and appeals. Affirmed.
Gray Powell, of Jasper, for appellant.
There was not sufficient evidence to submit the case to the jury. Defendant should have had the affirmative charge. Seigler v. State, 19 Ala. App. 135, 95 So. 563.
Harwell G. Davis, Atty. Gen., and O.B. Cornelius, Asst. Atty. Gen., for the State.
No charges were requested by defendant, and the sufficiency of the evidence is not presented for review.
The appellant was convicted for having in his possession a still to be used for the purpose of manufacturing prohibited liquors.
The court properly sustained the state's objection to the question propounded to defendant's witness Shade Campbell, calling for a conversation between the witness and one Burton Stewart who was not examined as a witness. The evidence elicited was clearly hearsay and not admissible. Welsh v. State, 96 Ala. 92, 11 So. 450; Mitchell v. State, 114 Ala. 3, 22 So. 71; Stone v. State, 105 Ala. 60, 17 So. 114.
Where the affirmative charge was not requested, nor the sufficiency of the evidence tested in any other manner in the court below, the evidence is not reviewable on appeal. Parcus v. State, 19 Ala. App. 592, 99 So. 662, and authorities there cited.
We find no error in the record. The judgment of the circuit court is affirmed.
Affirmed.