Opinion
6 Div. 916.
February 17, 1931.
Appeal from Circuit Court, Winston County; Ernest Lacy, Judge.
Leroy Davis was convicted of unlawfully possessing a still, and he appeals.
Affirmed.
H. D. Jones, of Russellville, for appellant.
All the jurors on the list to try appellant either heard or sat as jurors in the trial of one jointly indicted with appellant. Appellant's motion for a continuance should have been granted. Cline v. State, 20 Ala. App. 578, 104 So. 347. Before appellant could be convicted, he must be shown to have had possession of a complete still. Atchley v. State, 22 Ala. App. 125, 113 So. 625. In absence of evidence connecting appellant with possession of the still, he was due the affirmative charge. Hester v. State, 21 Ala. App. 315, 108 So. 78; Moody v. State, 20 Ala. App. 572, 104 So. 142.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Defendant moved for a continuance of the case on the ground that the panel of jurors from which a jury was to be selected to try defendant had "either sat on the trial of a companion case or heard the evidence therein." The companion case referred to was the case of a party jointly indicted with defendant and on the same charge.
That a number of the panel had sat on the companion case and rendered a verdict therein was ground for challenge, but that the jurors in attendance upon the court had heard the testimony in the other case is no cause for challenge. Cline v. State, 20 Ala. App. 579, 104 So. 347; Sandlin v. State, 19 Ala. App. 583, 99 So. 784.
This court has many times held that a defendant must be in possession of a complete still, suitable to be used in the manufacture of whisky before a conviction is authorized. We have also as many times held that the possession of a part or parts of a still suitable to be used in the manufacture of whisky when unexplained is evidence of the possession of the complete outfit. It seems to us that the statute itself is as plain as it can be made. Code 1923, § 4657.
There was evidence tending to connect the defendant with the unlawful possession of a part of a still suitable to be used in the manufacture of whisky, and hence the general charge was properly refused.
Other questions have been examined and found to be free from error. There being no error, the judgment is affirmed.
Affirmed.