McCormick v. State

• Decision Date: 19 June 1928
• Docket Number: 6 Div. 318
• Citation: 117 So. 911,22 Ala.App. 577
• Parties: McCORMICK v. STATE.
• Court: Alabama Court of Appeals

117 So. 911

22 Ala.App. 577

McCORMICK v. STATE.

6 Div. 318

Court of Appeals of Alabama

June 19, 1928

Rehearing Denied Aug. 7, 1928

Appeal from Circuit Court, Cullman County; James E. Horton, Judge.

Emmett McCormick was convicted of unlawfully possessing a still, and he appeals. Affirmed.

F.E. St. John, of Cullman, for appellant.

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

BRICKEN P.J.

This appellant was tried and convicted for the offense denounced in section 4656 of the Code of 1923, that of having in his possession a still, etc., to be used for the purpose of manufacturing prohibited liquors or beverages. The offense prescribed by said section contemplates that the accused must be in possession of a complete still before a conviction thereunder can be had. To be in possession of a part or parts of such still only is not sufficient. However, under the rule of evidence provided in section 4657 of the Code of 1923, the unexplained possession of any part or parts of a still, etc commonly or generally used for, or that is suitable to be used in, the manufacture of prohibited liquors and beverages shall be prima facie evidence of the violation of section 4656 of the Code, supra.

On the trial of this case the defendant requested, in writing, the following charge "Unless the jury are convinced from the evidence beyond a reasonable doubt that the defendant had in his possession a complete still, your verdict must be for the defendant."

This is a good charge, and properly states the law as above announced, and in the absence of similar instructions the refusal of said charge would constitute reversible error. But we find from the oral charge that the charge in question was fairly and substantially covered. In this connection the court in the oral charge stated to the jury:

"The second count is--charges him with having in possession a still. This man cannot be convicted on the second count, unless he has a complete still; if he has in possession a part or parts of a still, that is not a violation of the law."

As stated, this part of the oral charge fairly and substantially covered the rule of law contained in the refused charge, and therefore the court will not be placed in error for refusing said charge. Section 9509 of the Code of 1923 provides:

"The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal, if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge or

...