Opinion
7 Div. 410.
June 26, 1928. Rehearing Denied August 7, 1928.
Appeal from Circuit Court, Cleburne County; R. B. Carr, Judge.
Dewey Pate was convicted of unlawfully possessing a still, and he appeals. Affirmed.
Certiorari Denied by Supreme Court in Pate v. State, 118 So. 271.
Count 2 of the indictment is as follows: "The grand jury of said county further charge that before the finding of this indictment Dewey Pate and Enos Pate, whose true names are to the grand jury unknown otherwise than as stated, manufactured, sold, gave away, or had in his possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, against the peace and dignity of the state of Alabama."
The demurrer to this count is as follows: "For that it is alleged in said count that Dewey Pate, the defendant, and one Enos Pate, manufactured, sold, gave away, or had in his possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, and it does not appear from said count which of said parties is charged with said offense, and for aught that appears therefrom said offense was committed by Enos Pate and not by the defendant."
Defendant moved the court to grant a continuance of the case on the ground that one J. W. Clifton, who was summoned as a witness in behalf of defendant, a material witness, was not present, and defendant could not properly present his case without this witness. The court stated that the record showed the case to have been continued five times at the instance of defendant, and overruled the motion. Defendant thereupon offered a showing for said Clifton, to the effect that he was at the place where the still was destroyed a day or two after it was destroyed and heard one Hanner said the still belonged to him.
The court stated that the subpœna docket did not show any service on the witness nor any return, and declined to admit the showing.
Merrill Field, of Anniston, for appellant.
It was error for the court to refuse a continuance and admit the showing of the absent witness.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
There being no evidence in this case to sustain the first count of the indictment for distilling, etc., spirituous or alcoholic liquors, the court, at the request of defendant, in writing, directed a verdict in favor of defendant as to count 1. Count 2 charged the unlawful possession of a still, etc. The count was in proper form and substance, and the demurrers thereto were properly overruled. The offense charged therein was susceptible of joint commission.
It affirmatively appears from the record there was no abuse of the court's discretion in overruling the motion for a continuance and in not allowing the showing for the alleged absent witness Clifton.
The state's evidence in this case tended to sustain the charge and to show that this defendant was present at the still and assisting in its operation. That of the defendant tended to show otherwise. Thus a jury question was presented, and the evidence was ample to sustain the verdict rendered. No error of a reversible nature appears in any of the rulings of the court. Let the judgment of conviction from which this appeal was taken stand affirmed.
Affirmed.