195 So. 301 | Ala. Ct. App. | 1940
Appellant was tried under an indictment in two counts; the first count charging that he "did distill, make or manufacture alcoholic, spirituous or malt liquor, a part of which was alcohol," and the second that he "had in his possession a still, apparatus, appliance or device or substitute therefor, to be used for the purpose of manufacturing alcoholic, spirituous or malt liquor, a part of which was alcohol."
He was found guilty by the jury "as charged in the first count of the indictment." And adjudged and sentenced accordingly.
This was permissible under the law, the suggestion to the contrary — if it is to the contrary — in the next to the last paragraph of the opinion by this court in the case of Hill v. State,
There was no abuse of the trial court's discretion in refusing appellant's motion to continue the case, when it was called for trial, because of the claimed illness of the defendant (appellant). The testimony shows, sufficiently, that he was not, as a matter of fact, ill — unless "dread" be termed an illness.
It is without dispute that a whiskey still was found by the officers set up and in operation, with whiskey flowing therefrom; and that appellant was there.
The only litigated question was as to whether or not appellant was "working about the still" in such a way as to authorize the jury to infer he was "operating it," or "assisting in its operation."
The testimony on behalf of the State was ample to sustain such an inference. Appellant's denial simply made the question one for the jury's decision.
Discussing a charge similar to appellant's written, requested and refused charge 11, this court said in the opinion in the case of Perkins v. State,
In this case refused charge 11, supra, comes under the second rule in the above quotation, as misleading and properly refused.
The entire proceedings appear to have been conducted without error, and the judgment is affirmed.
Affirmed.
SIMPSON, J., not sitting.