Kizziah v. State, 6 Div. 965
Decision Date | 07 April 1964 |
Docket Number | 6 Div. 965 |
Citation | 162 So.2d 889,42 Ala.App. 303 |
Parties | Howard KIZZIAH v. STATE. |
Court | Alabama Court of Appeals |
Morel Montgomery, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
This is an appeal from a judgment of conviction of possessing a still. Code 1940, T. 29, §§ 131 and 132. Sentence was set at four years in the penitentiary.
The State's evidence did not show all the components of a working distillery were present and assembled.
We tabulate:
A. Found at Site
a) 376 gallon covered tank with burner
b) Fuel line nearby
c) 356 gallons of alcoholic mash in tank with burner
d) 5-gallon can of fuel oil in still yard.
a) Capper
b) Cooler
c) Thumper
d) Steam lines
B. Found About 30 Yards from Kizziah's Residence
(R. pp. 50-51.)
All parts needed to complete apparatus listed in 2 a) through d), above.
Kizziah confessed to ownership certainly of the tank or still pot. A State witness saw him testing the mash, moving the fuel and connecting the fuel feeder lines. With the fire pot full and burner ready, fuel lines hooked up to the fuel and the defendant's testing the mash, a reasonable jury could infer that a still was about to be put to work.
Code 1940, T. 29, § 132, reads:
After the oral charge, defense counsel excerpted thus:
'MR. MONTGOMERY: Just a minute, Judge.
'(Counsel for the defendant, before the jury retired, caused to be read to the Court the following portion of the Court's oral charge:
Section 132, supra, to which the trial judge was clearly referring, has been construed to state a rule of evidence. Nevertheless, the burden of proof remains throughout on the State. Nugent v. State, 28 Ala.App. 182, 181 So. 707. In Stover v. State, 36 Ala.App. 696, 63 So.2d 386, this court, per Price, J., said:
* * *'
Wigmore says, 'No presumption can be evidence; it is a rule about the duty of producing evidence.' Evidence (3d Ed.), § 2511, p. 409. Gordon v. State, 268 Ala. 517, 110 So.2d 334, adopts this premise.
Though, in Little v. State, 27 Ala.App. 119, 166 So. 618, we find this:
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