Opinion
8 Div. 72.
February 19, 1924. Rehearing Denied April 8, 1924.
Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.
Henry Parcus was convicted of violating the prohibition law, and appeals. Affirmed.
Hoyt Long, of Guntersville, for appellant.
The mere fact that defendant was discovered some distance from the still, without evidence of his possession, control, or situation of the still upon his lands, is insufficient to convict him. Mitchell v. State, 18 Ala. App. 119, 89 So. 98; Clark v. State, 18 Ala. App. 217, 90 So. 16; Jones v. State, 18 Ala. App. 116, 90 So. 135; Adams v. State, 18 Ala. App. 143, 90 So. 42; Seigler v. State, ante, p. 135, 95 So. 563 : Hammons v. State, 18 Ala. App. 470, 92 So. 914.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The sufficiency of the evidence, not being raised in the trial court, cannot be reviewed on appeal. Warren v. State, 18 Ala. App. 245, 90 So. 277.
The appellant (defendant in the court below) was convicted for violation of the prohibition laws.
Counsel for appellant earnestly insist that there was not sufficient testimony shown by the record to sustain a conviction. No ruling of the trial court was invoked upon this question; the affirmative charge was not requested, nor was a motion for a new trial made. Section 5362, Code 1907, provides that the court shall not charge upon the effect of the evidence unless required to do so by one of the parties.
It has been decided many times by our Supreme Court and this court that, where the affirmative charge was not requested, nor the sufficiency of the evidence presented in any other manner in the court below the evidence is not reviewable on appeal. Warren v. State, 18 Ala. App. 245, 90 So. 277; McPherson v. State, 198 Ala. 5, 73 So. 387; Tucker v. State, 202 Ala. 5, 79 So. 303; Ross v. State, 16 Ala. App. 393, 78 So. 309; Morrissette v. State, 16 Ala. App. 32, 75 So. 77.
There is no error in the record. The judgment of the lower court is affirmed.
Affirmed.