Opinion
8 Div. 35-37, 135.
June 24, 1930.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
J. D. Duncan, Clifton Hilliard, George Worthy, and Marion Worthy were convicted of distilling, and they appeal.
Affirmed as to George and Marion Worthy and Clifton Hilliard; reversed and remanded as to J. D. Duncan.
Watts White, of Huntsville, for appellants.
A defendant, though present at a still, cannot be convicted of making beer or mash found at the still unless the evidence shows he participated in making it. Richardson v. State, 21 Ala. App. 624, 111 So. 50; Moon v. State, 19 Ala. App. 176, 95 So. 830; Haynes v. State, 20 Ala. App. 160, 101 So. 167; Suggs v. State, 22 Ala. App. 311, 115 So. 289.
Charlie C. McCall. Atty. Gen., for the State.
Brief did not reach the Reporter.
These four appellants were indicted, separately; the indictment of each being identical with the others, and being in two counts, one charging the offense known as unlawfully distilling, etc., prohibited liquors, and the other charging the offense of unlawfully being in possession, etc., of a still, etc., to be used for the purpose of manufacturing prohibited liquors.
By agreement, all four cases were tried together as one case, and, each appellant being found guilty by the jury, and convicted, of the offense charged in the first count of the indictment, they each separately appeal, but agree that the appeals be consolidated and treated as one case here, but separately and severally, as was done with their trials in the court below.
So treating them, the court has read the entire evidence, sitting en banc. The only questions apparent are those raised by a few rulings on the taking of testimony, the refusal of the general affirmative charge as to each appellant, and the overruling of the motions for a new trial, filed on behalf of each.
The rulings made on the taking of testimony will not be separately treated. They have each been examined, and we are of the opinion that, whether technically correct or not, in each instance they involve questions of so inconsequential a nature that no prejudice was worked to any appellant by same, and no reversal would be predicated thereon. Supreme Court Rule 45.
With reference to the appellants George Worthy, Marion Worthy, and Clifton Hilliard, we are of the opinion that the evidence was ample to support the verdict of the jury and their judgments of conviction.
But, with reference to the appellant J. D. Duncan, we are of the opinion, and hold, that, while the evidence may be sufficient to give rise to a strong suspicion of his guilt, yet it is insufficient, under the rule prevailing in this state, so well known that we do not cite an authority, to sustain the verdict of the jury, or the judgment of conviction based thereon, as to him.
The judgments of conviction of appellants George Worthy, Marion Worthy, and Clifton Hilliard are affirmed. For the error in overruling his motion for a new trial, the judgment of conviction of appellant J. D. Duncan is reversed, and his case remanded for another trial.
Affirmed as to George Worthy, Marion Worthy, and Clifton Hilliard. Reversed and remanded as to J. D. Duncan.