Little v. State, 7 Div. 198

• Decision Date: 10 March 1936
• Docket Number: 7 Div. 198
• Citation: 166 So. 618,27 Ala.App. 119
• Parties: LITTLE et al. v. STATE.
• Court: Alabama Court of Appeals

166 So. 618

27 Ala.App. 119

LITTLE et al. v. STATE.

7 Div. 198

Court of Appeals of Alabama

March 10, 1936

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Gray Little and Lewis Woods were convicted of unlawfully possessing a still, and they appeal.

Reversed and remanded.

Merrill Jones & Whiteside, of Anniston, for appellants.

A.A. Carmichael, Atty. Gen., for the State.

SAMFORD Judge.

The defendants were indicted by the grand jury and charged in two counts (1) with unlawfully possessing a still, etc., and (2) manufacturing whisky. They were each convicted under the first count, which acquits them under the second count and renders it unnecessary for us to pass on any questions relating to the charge under the second count.

In his oral charge to the jury the court said in part: "Now as to that feature of it (the possession of a part of a still) a person who is found in the possession of a part of a still it is a presumption that he is in possession of the whole." He also charged the jury as a part of his oral charge, as follows: "So, from this evidence, if you are convinced beyond a reasonable doubt that the defendants, either one or both of them, were in possession of a part of the still, then that would be prima facie evidence that he was in possession of the whole." To each of the two above-quoted excerpts from the court's oral charge the defendants each separately and severally excepted. Seeming to realize that there was merit in the exceptions, the court stated to the jury: "Gentlemen, I possibly made an inadvertent statement to you and Mr. Jones' exception called my attention to it. If I stated to you that possession of a part of a still is presumptive evidence that he is in possession of the whole of it, I didn't mean to state that. What I meant to state was that if he is in possession of a part of a still it is prima facie evidence that he is in possession of the whole. I will withdraw that other statement. I am sure I made it but I didn't intend to." To this explanation the defendants each duly and legally excepted.

It has many times been held by this court that Code 1923, § 4657, is a rule of evidence fixed by the Legislature in its efforts to suppress the liquor traffic. It creates no crime and fixes no penalty, but simply fixes what will be prima facie evidence of a violation of the preceding section of the Code when certain facts are proven, which are the unexplained possession of any part or parts of any still, apparatus or appliance, or any device or substitute therefor, commonly or generally used for, or that is suitable to be used in, the manufacture of prohibited liquors and beverages.

This court has consistently held that, before the possession of a part of a still, etc., shall make a prima facie case against the defendant, the evidence must show beyond a reasonable doubt (1) the possession of the articles or parts designated (2) that such articles or parts were commonly or generally used for, or that they were suitable to be used in, the manufacture of prohibited liquors; and (3) that there is no satisfactory explanation of such possession. Ex parte State ex rel. Davis, 211 Ala. 574, 100 So. 917; Wilson v State, 20 Ala.App. 62, 100 So. 914; Echols v. State, 24 Ala.App. 352, 135 So. 410.

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