Opinion
7 Div. 135.
June 30, 1925.
Appeal from Circuit Court, Cleburne County; S.W. Tate, Judge.
Merrill Allen, of Anniston, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The defendant was convicted of the offense of distilling, etc., and appeals. It would serve no useful purpose to discuss the evidence. The defendant requested the general affirmative charge, which was refused, as to the first count of the indictment. This count charged that he did distill liquors, etc., a part of which was alcohol. We have carefully examined the record, and nowhere is there any evidence that whisky was in fact manufactured. No whisky was found. The still was not connected up. In fact, nothing was shown by the evidence from which the jury would be authorized to legally find that whisky had been made. The requested charge as to count 1 should have been given, and for the error in its refusal the judgment is reversed and the cause remanded. Gardner v. State (Ala.App.) 102 So. 914; Winchester v. State, 20 Ala. App. 431, 102 So. 595.
Reversed and remanded.