Opinion
29373.
DECIDED FEBRUARY 26, 1942.
Violating liquor law; from Murray superior court — Judge Mitchell. September 20, 1941.
C. C. Pittman, Charlie Parnell, for plaintiff in error.
J. H. Paschall, solicitor-general, contra.
1. Where officers, while in search of a whisky still which had been reported to them as operating in a section where they were then standing, hear, in a nearby, old, 10-by-12-foot, one-room house, noises such as those of bottles being shoved around and clinking together, and where they immediately investigate and find the defendant and his brother together examining a strainer, and they further find in the room in their presence over seventy pints of bottled whisky not bearing the required State revenue stamps, such evidence is sufficient to show control and possession in the defendant and his brother and to support a verdict of guilty against the defendant.
2. In such case, while a charge to the jury that if the defendant was aiding and abetting his brother in the illegal control and possession of the whisky, he would be guilty as charged, was, under the facts, inapplicable, it was nevertheless harmless.
3. When an indictment charges that on a date certain an offense was committed, and the uncontradicted proof in this particular shows that it was then committed, and when it further appears that the date charged and proved as being that on which the offense occurred, was, mathematically, within the statute of limitations (Code § 27-601), and no other acts or dates more remote than that charged and proved were involved in the evidence, it was not error for the court to fail to instruct the jury that they must, to convict, find that the offense was committed, as in this case, within two years prior to the return of the indictment.
4. Other assignments of error present no questions of merit. The evidence supported the verdict and the court did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.