Opinion
7 Div. 28.
February 3, 1925.
Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.
Burk Gardner was convicted of manufacturing prohibited liquors, and he appeals. Reversed and remanded.
See, also, 19 Ala. App. 369, 97 So. 373.
Riddle Riddle, of Talladega, for appellant.
Defendant was entitled to the general affirmative charge. Ballentine v. State, 19 Ala. App. 261, 96 So. 732.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The indictment was in two counts. The first charged that defendant manufactured whisky, and the second, the possession of a still, etc. There was a verdict of guilty under the first count. Under the law, this was an acquittal of the second count.
The defendant requested the general charge as to the first count which charge was refused. We have carefully examined the record, and nowhere is there any evidence that whisky was in fact manufactured. No whisky was found; no smell of whisky was shown. In fact, nothing was shown by the evidence from which the jury would be authorized to legally find that whisky had been made. The charge as to count 1 should have been given, and for this error the judgment is reversed and the cause is remanded.
Reversed and remanded.