Opinion
8 Div. 646.
March 13, 1928. Rehearing Denied March 27, 1928.
Appeal from Circuit Court, Colbert County; Charles P. Almon, Judge.
John Jackson, Sr., was convicted of unlawfully possessing a still, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Jackson v. State, 217 Ala. 563, 117 So. 157.
Stell Quillin, of Russellville, for appellant.
The appellant was entitled to the affirmative charge. Scott v. State, 20 Ala. App. 360, 102 So. 152; Martin v. State, 20 Ala. App. 593, 104 So. 287; Atchley v. State, ante, p. 125, 113 So. 625; Murphy v. State, ante, p. 163, 113 So. 623; Barker v. State, 20 Ala. App. 564, 103 So. 914. Even though a defendant is not entitled to the affirmative charge, motion for new trial is the proper way to raise the question of the sufficiency of the evidence. Plyler v. State, 21 Ala. App. 320, 108 So. 83. The evidence of the finding of a pint of whisky in an overall jumper was illegal and prejudicial.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant and another were found out in the woods exercising acts of dominion and control over a still pot set in a furnace, with beer in it ready for cooking, and other attachments for a whisky still, all of which were suitable to be used in the manufacture of prohibited liquors, and all in Colbert county. It is the law, and was so charged by the court, that, in order to sustain a conviction, the evidence must convince the jury beyond a reasonable doubt that the defendant was in possession of a complete still. Not that such still was assembled and ready for use, but that all the parts were in defendant's possession, and suitable to be used in the manufacture of whisky, whenever it suited the defendant to assemble and use them for that purpose. The facts in this case, when taken in connection with section 4657 of the Code of 1923, present a case for the jury.
The court properly charged the jury upon the burden of proof as fixed by statute. The unexplained possession of any part of a still commonly or generally used in the manufacture of prohibited liquor makes a prima facie case for the jury.
The admission in evidence of the fact that a pint of white whisky was found in a "jumper pocket" at the place where the whisky still was found, even if error, is not sufficient upon which to base a reversal when the entire record is taken and considered, which we have done, and conclude that the defendant has had a fair trial, free from prejudicial error, and the judgment is affirmed.
Affirmed.