Where there was no motion for new trial the sufficiency of the evidence to sustain the verdict was not raised. Miller v. State, 27 Ala. App. 600, 177 So. 176. Where there is no bill of exceptions, charges requested based on the evidence will not be considered by the appellate court. Levoy v. State, 28 Ala. App. 94, 179 So. 391; Hewett v. State, 231 Ala. 524, 165 So. 772; Turner v. State, 28 Ala. App. 65, 178 So. 463. The demurrer to the indictment was properly overruled. Watkins v. State, 20 Ala. App. 246, 101 So. 334; Reese v. State, 18 Ala. App. 357, 92 So. 77; Id., 207 Ala. 714, 92 So. 921; Floyd v. State, 18 Ala. App. 647, 94 So. 192; Ryland v. State, 18 Ala. App. 481, 93 So. 213. BRICKEN, Presiding Judge.
This is a constituent element of the offense denounced by the statute. Masters v. State, 18 Ala. App. 614, 94 So. 249; Reese v. State, 18 Ala. App. 357, 92 So. 77; Gamble v. State, 19 Ala. App. 82, 95 So. 202; Wilson v. State, supra. Under these two sections, the possession of certain enumerated articles has been held sufficient to support a conviction:
In a criminal prosecution for a misdemeanor it is sufficient for the allegation to follow the words creating the offense therefore following the language of the statute. Reese v. State, 18 Ala. App. 357, 92 So. 77, cert. den., Ex Parte Reese, 207 Ala. 714, 92 So. 921 (1922); Collins v. State, 28 Ala. App. 400, 185 So. 799 (1939). In an indictment under the Corrupt Practices Act and more particularly Title 17, § 281 and § 282, Code of Alabama 1940 (Recomp.
Possession of a complete still, coupled with the fact that it is to be used for the purpose of manufacturing prohibited liquors, makes the crime complete. Masters v. State, 18 Ala. App. 614, 94 So. 249; Griggs v. State, 18 Ala. App. 467, 93 So. 499; Reese v. State, 18 Ala. App. 357, 92 So. 77; Holloway v. State, 18 Ala. App. 392, 92 So. 78. Conflicting evidence presented a jury a question as to defendant's guilt. Harris v. State, 32 Ala. App. 203, 23 So.2d 513, 514; Jackson v. State, 32 Ala. App. 33, 22 So.2d 99; Id., 246 Ala. 669, 22 So.2d 100; Barnett v. State, 31 Ala. App. 225, 15 So.2d 340; Id., 244 Ala. 656, 15 So.2d 341; Berry v. State, 29 Ala. App. 361, 196 So. 164; Burt v. State, 29 Ala. App. 160, 193 So. 876; Rikard v. State, 31 Ala. App. 374, 18 So.2d 435.
Mere possession is not a violation of the statute. Brock v. State, 19 Ala. App. 124, 95 So. 559; Masters v. State, 18 Ala. App. 614, 94 So. 249; Griggs v. State, 18 Ala. App. 467, 93 So. 499; Holloway v. State, 18 Ala. App. 392, 92 So. 78; Reese v. State, 18 Ala. App. 357, 92 So. 77. Charlie C. McCall, Atty. Gen., for the State.
There is no merit in the further contention of defendant that the indictment is fatally defective in using the words, "apparatus, appliance, or any device or substitute therefor," in addition to charging the possession of a "still." We have many times held this form of indictment to be sufficient. Barnes v. State, 18 Ala. App. 344, 92 So. 15; Reese v. State, 18 Ala. App. 357, 92 So. 77. There was conflict in the evidence, and therefore charges B, C, and D were properly refused.
There were demurrers filed to both counts of the indictment, assigning 29 grounds, but this court has already many times held that indictments similar to the one in this case are not subject to demurrer. Barnes v. State, 18 Ala. App. 344, 92 So. 15; Taylor v. State, 17 Ala. App. 579, 88 So. 205; Reese v. State, 18 Ala. App. 357, 92 So. 77; Holloway v. State, 18 Ala. App. 392, 92 So. 78; Layman v. State, 18 Ala. App. 441, 93 So. 66. Charge 3 was properly refused.
The defendant's demurrers to the second count of the indictment on the ground that no particular description of the still, or substitute or device, was shown, and that the indictment contained disjunctive averments, were properly overruled. Barnes v. State, 18 Ala. App. 344, 92 So. 15; Reese v. State, 18 Ala. App. 357, 92 So. 77. Mrs. Tom Bannister, a witness for defendant, testified on cross-examination; without objection, as follows:
The demurrers to the second count of the indictment were properly overruled. Holloway v. State, ante, p. 392, 92 So. 78; Reese v. State, ante, p. 357, 92 So. 77. The witness J.W. Lane testified that he was familiar with beer, malt, and malt liquors, and had seen a good deal of it. He was thereupon permitted to testify that he had found a barrel of beer at the defendant's house.
Harwell G. Davis, Atty, Gen., and Lamar Field, Asst. Atty. Gen., for the State. The contentions of the appellant are fully answered by section 7139, Code 1907, and by the cases of Laminack v. State, ante, p. 399, 92 So. 502; Id., ante, p. 400, 92 So. 505; Reese v. State, ante, p. 357, 92 So. 77. BRICKEN, P.J.