Love v. State

Decision Date06 March 1928
Docket Number6 Div. 327
Citation117 So. 398,22 Ala.App. 392
PartiesLOVE v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied March 20, 1928

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Lemmie Love was convicted of distilling, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Love v. State, 117 So 400.

James J. Ray, of Jasper, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The motion for a new trial is not presented for the consideration of this court as no exception appears to have been reserved to the action of the court in overruling the motion. Such exception must be shown by the bill of exceptions. A statement in the judgment only, to that effect will not suffice. Martin v. State, 216 Ala. 160, 113 So. 602; Ex parte Grace, 213 Ala. 550, 105 So. 707.

The defendant was convicted under count 1 of the indictment which charged that he did distill, make, or manufacture alcoholic spirituous, malted, or mixed liquors, a part of which was alcohol, contrary to law. This count of the indictment was sufficient, and the mere fact that it charged, in the alternative, "mixed liquors or beverages, a part of which was alcohol," does not render it otherwise. Lee v. State, 18 Ala.App. 566, 93 So. 59. See, also Ex parte State in re Neely v. State, 207 Ala. 585, 93 So. 382. Evidence to sustain this averment was admissible.

The evidence was in conflict and presented a jury question. It was ample to justify the jury in the verdict rendered and to support the judgment of conviction pronounced and entered. Charges 1 and 2 were affirmative in their nature; they were inapt in this case under the evidence, and the court properly refused to give these charges.

Refused charge 3 is not the law. Koch v. State, 115 Ala. 99, 22 So. 471; Boozer v. Jones, 169 Ala. 481, 53 So. 1018; Sherrill's Case, 195 Ala. 175, 70 So. 723; Gotcher v. State, 19 Ala.App. 269, 97 So. 111.

Able counsel for appellant appear earnest in the insistence that there was no evidence in this case to connect this appellant with the commission of the offense charged against him. The record does not bear out this insistence. The evidence shows, without dispute, that at the time of the arrest of appellant, he and one or two other men were at a still, which was in operation, filled with beer and fired up, and a five-gallon jug about two-thirds full of whisky, and three barrels of beer with about fifty gallons of beer in them. State witness Sheriff Kilgore testified:

"I know the defendant Lemmie Love. I saw him at the distillery. He and Mr. Hunter and another man, whom I didn't recognize, were there; *** we watched them work for a while. *** Mr. Love [defendant] and Mr. Hunter were standing close to the distillery, drinking liquor out of a bottle. Mr. Love [[defendant] then picked up some wood or pine and put it on the fire, after standing there a few minutes, Mr. Love [defendant] turned and walked about ten feet from the still and sat down. I saw him with a bottle in his hand, and they both took a drink out of the bottle. *** The defendant had on his work clothes; he didn't have on a collar and tie."

On cross-examination of this witness, he stated:

"I do not know whether the still was on Lemmie Love's [defendant's] land or not, but I saw him pick up a piece of
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