116 So. 308 | Ala. Ct. App. | 1928
The defendant was indicted on two counts: (1) Manufacturing whisky. (2) Unlawfully possessing a still. The evidence discloses that if the crime was committed, it was committed jointly with one Fuller, although Fuller is not included in this indictment. Therefore everything said and done by either party prior to the crime or while they were engaged in its consummation was admissible in evidence and binding on this defendant. Lancaster v. State,
It was not proper for the solicitor to "jibe" at defendant's counsel reflecting on his education or the improper use of English, but unless such "jibes" or "reflections" are such as that they tend to prejudice the defendant's cause before the jury, a motion to withdraw the case and for a mistrial is properly overruled.
There was evidence on the part of the state tending to prove a complete still. This is a continuing offense, and any evidence tending to connect the defendant with its possession at any time would be admissible, and the inquiry need not be confined to the time of the arrest. We have many times decided this question.
There being evidence tending to prove possession, the general charge as to the second count was properly refused, and we may here add that the court correctly charged that if the possession was by the defendant alone or jointly with another he would be guilty.
The refusal of the court to give the general charge for defendant as to the first count of the indictment presents a different question. There was no evidence tending to prove that the still had ever been used or that any liquor had been distilled, nor was there any evidence that the contents of the barrels found at the place contained alcohol. We held by a divided court in Glaze v. State,
For the error pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.