Opinion
7 Div. 292.
May 10, 1927. Rehearing Denied May 24, 1927.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Harley Pruitt was convicted of manufacturing whisky, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Pruitt v. State, 216 Ala. 353, 113 So. 317.
These charges were refused to defendant:
"(1) The court charges the jury that, although they may believe the defendant was present at the still and had a cup containing liquor, yet if they further find under the evidence that he did not manufacture or operate the still, then it would be their duty to acquit him."
"(2) The court charges the jury that, before they can convict the defendant every member of the jury must be satisfied beyond a reasonable doubt that the defendant made the liquor at the still in question."
Longshore Longshore, of Columbiana, for appellant.
Defendant was entitled to the affirmative charge. Moon v. State, 19 Ala. App. 176, 95 So. 830; Haynes v. State, 20 Ala. App. 160, 101 So. 167.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
Counsel argue the questions raised and treated, but without citing authorities.
The defendant was indicted in two counts. The first charged manufacturing whisky and the second the unlawful possession of a still, etc. The conviction under the first count was an acquittal under the second, and therefore rulings of the court which relate solely to the charge under the second count need not be considered. However, we may add that the rulings of the court in this regard were free from error. Scott v. State, 20 Ala. App. 360, 102 So. 152; Reeves v. State, 19 Ala. App. 72, 95 So. 203; Wilson v. State, 20 Ala. App. 62, 100 So. 914.
What was said by the parties relative to the ownership of the still, at the time of the arrest at the still all parties being present was a part of the res gestæ and relevant, as was also the act of defendant's brother in "proofing" the whisky being poured by defendant.
The undisclosed intention of Joe Pruitt, the brother of defendant, in going to the still the morning of the arrest, was illegal and immaterial.
The general charge of the court, when taken as a whole, correctly states the law in regard to aiding and abetting. This law has so often been stated as not to need reiteration here.
There was evidence that whisky was being made there at the time of the arrest of defendant and that defendant participated in the manufacture. The general charge was properly refused. Charge 1 omits a consideration of aiding and abetting, and charge 2 is not based upon a consideration of all the evidence.
We find no error in the record, and the judgment is affirmed.
Affirmed.