McNeel v. State, 7 Div. 860.

• Decision Date: 01 March 1932
• Docket Number: 7 Div. 860.
• Citation: 140 So. 185,25 Ala.App. 36
• Parties: MCNEEL ET AL. v. STATE.
• Court: Alabama Court of Appeals

140 So. 185

25 Ala.App. 36

MCNEEL ET AL. v. STATE.

7 Div. 860.

Court of Appeals of Alabama

March 1, 1932

Appeal from Circuit Court, St. Clair County; W. J. Martin, Judge.

Isaiah McNeel, Robert Brown, and James Brown were convicted of manufacturing prohibited liquor and possessing a still, and they appeal.

Affirmed in part, reversed in part and remanded.

Fort, Beddow & Ray, of Birmingham, for appellants.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD J.

The three defendants, one a negro and the other two white men were indicted jointly. The first count charged the unlawful manufacture of whisky, and, the second, the unlawful possession of a still, etc. There was a third count, but the conviction was had on the first and second, and hence we do not consider the third.

The facts as disclosed by the record tend to prove a whisky still located on the side of a mountain in St. Clair county, remote from any habitation and in a wood near the foot of the mountain. This still had been recently operated when the officers found it. It was still warm and there were some live coals in the furnace, and there was warm mash in the still. There was an old mountain road on top of the mountain opposite where the still was found, and between this road and the still there was found a Ford truck and at this truck were the three defendants loading it with whisky in cans. The whisky in the cans was warm, indicating its recent manufacture. Between the truck and the still there was a five-gallon can of whisky sitting near the path on which was lying the coat of defendant James Brown. The truck was off the road in the woods and about fifty yards from the still. The still was complete and suitable to be used in the manufacture of prohibited liquors, except it lacked a worm without which it could not be used. After the parties had been arrested at the truck the defendant James Brown, in answer to a question by one of the officers as to how much liquor they made, said "that was the first run, we didn't get a good turn out on it, only got fifteen or twenty gallons." Upon being asked by one of the officers where the worm was, defendant Robert Brown said "that the worm was down below the still behind a log and pointed in the direction when he made the statement." There was no evidence from which the jury could legally infer that the incriminatory statements above set out were heard by the other defendants. The truck was first seen at the place where the arrest was made, early in the morning, and the arrest was made about 3:30 p. m. When examined the truck was found to contain, in addition to the whisky, bedclothing and some rations. The statements of the defendants James and Robert Brown were shown to have been voluntary.

This court has consistently held that, to support a conviction for the possession of a still, the evidence must show a complete still. Jackson v. State, 22 Ala. App. 409, 117 So 156. However, we have just as consistently held that the possession of any part of a still commonly or generally used for or that is suitable to be used in the manufacture of prohibited liquors, is prima facie evidence of a possession of a...