Gamble v. State , 19 Ala. App. 82 ( 1922 )

The indictment was in two counts. The first charged the defendant with manufacturing whisky, and the second with possessing a still, in violation of Acts 1919, p. 1086. There was a verdict of guilty under count 2.

Section 1 of the act, supra, creates the crime and presupposes a complete still, apparatus, appliance, or device or substitute therefor to be used, etc. In order for the state to be entitled to a conviction, this fact must be established beyond a reasonable doubt.

Such still, apparatus, etc., need not be assembled, if the parts reasonably necessary to its use for the purpose of manufacturing whisky are in the possession of the defendant at the time alleged in the indictment the offense is complete. Atwood v. State, 53 Ala. 508; Hutchinson v. State, 62 Ala. 3,34 Am. Rep. 1. There might be so many parts of the still missing as to lose its character as such, and where this is the case it would not be a violation of section 1 of the statute.

Section 2 of Acts 1919, p. 1086, supra, fixes a rule of evidence. The possession of any part of a still, etc., is prima facie evidence of guilt and would authorize a conclusion by the jury that the defendant possessed the whole still or apparatus, etc., without additional proof. Maisel v. State, 17 Ala. App. 12,81 So. 348; Lindsey v. State. 18 Ala. App. 494,93 So. 331.

The rulings of the trial court in its oral charge and in refusal of written charges requested by defendant were not in accord with these views, and for these errors the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.