Ex Parte State , 211 Ala. 574 ( 1924 )

Section 1 of the Prohibition Act of 1919, p 1086, makes it unlawful, among other things, for one "to * * * have in possession any still, apparatus, appliance, or any device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages." It would therefore be a violation of this law if he possessed any of the above-mentioned articles for the purpose of manufacturing prohibited liquors, whether such devices were or were not generally used or are suitable to be used for such purpose

Section 2, however, deals with proof essential to a prima facie case, and, in order for the possession of the articles there enumerated to make out a prima facie case, they must be of such character as is in common use or suitable to be used for the purpose of manufacturing liquor. There seems to be a slight difference between section 1 as to what constitutes a violation and section 2 as to what makes out a prima facie case, and the possession of certain articles under section 1, while not making out a prima facie case, would violate the law if the proof showed that they were to be used for the purpose of manufacturing liquors, yet to make out a prima facie case under section 2, the proof must show that said articles were commonly or generally used for the purpose of manufacturing liquors or were suitable therefor We therefore agree with the opinion of the Court of Appeals in its interpretation of section 2 of the act. There is an expression, however, in the opinion, "In the absence of this necessary proof it cannot be said that the alleged articles came within the inhibited terms of the statute." They would not come within section 2 so as to make out a prima facie case, but might come within the inhibited terms of section 1 if used for the purpose of manufacturing, whether commonly used or suitable for the purpose or not. While the above-quoted inaccurate expression appears in the opinion the Court of Appeals in an opinion upon rehearing disclaims any purpose to construe section 1, and confines what was said in the original opinion to section 2 of the act, and with this qualification or explanation we find no erroneous statement of the law in said opinion, and the writ is denied.

Writ denied.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.