Milam v. State, 7 Div. 797.

• Decision Date: 09 June 1931
• Docket Number: 7 Div. 797.
• Parties: MILAM v. STATE.
• Court: Alabama Court of Appeals

136 So. 831

24 Ala.App. 403

MILAM v. STATE.

7 Div. 797.

Court of Appeals of Alabama

June 9, 1931

Rehearing Denied June 30, 1931.

Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.

Jim Milam was convicted of distilling and possessing a still, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Milam v. State (7 Div 70) 136 So. 833.

Frank B. Embry, of Pell City, and S.W. Tate, of Anniston, for appellant.

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

BRICKEN P.J.

In this case, in the court below, the jury returned a general verdict against this appellant of guilty, as charged in the indictment. Whereupon the court sentenced him to an indeterminate term of imprisonment in the penitentiary. Judgment of conviction was pronounced and entered from which this appeal was taken.

The indictment contained two counts, in proper form and substance, and charged in the first count that this appellant did distill, make, or manufacture alcoholic, spirituous, malted, or mixed liquors or beverages a part of which was alcohol, etc., and in the second count that he had in his possession, a still, etc., to be used for the purpose of manufacturing prohibited liquors or beverages.

The corpus delicti was fully proven by the undisputed evidence which disclosed that this appellant and one Grady Shepperd were at a still of large capacity, and in full operation, with whisky running therefrom at the time of the arrival of the officers. Shepperd ran and escaped, but this appellant was arrested at the still. The still was filled with mash and, as stated, was in full operation at the time, and some eight or ten gallons of whisky already made.

Appellant, through counsel, earnestly insists that as a matter of law from the whole evidence he was entitled to the affirmative charge, the insistence being predicated on the insufficiency of the evidence to carry the case to the jury so far as he was concerned. This is the principal insistence on this appeal to effect a reversal. Appellant admits his presence at the still, and when testifying in his own behalf stated he had been at the still only thirty or forty minutes before the officers arrived; that he went there to buy a gallon of whisky from Shepperd; that he was up above the still dam, but wasn't doing anything about the dam, and on cross-examination he stated: "The best I remember I had a shovel in my hand." He also testified: "I did not have any interest in or dominion over that still. I did not do anything around the still. I was up above the still dam but I wasn't doing anything there in the way of fixing that dam or opening up there to assist in that still in the manufacture of liquor."

The three state witnesses, however, testified to the contrary. Witness Honeycutt testified: "I saw the defendant (appellant) at the still with a shovel and he was damming up a branch. There was a little dam in the branch and Mr. Milam was up here from the still damming that up. They were getting the water from the pond." Continuing, this witness said: "There was a dam across the branch and the pipe went through under that dam up to where the water was and defendant was there shovelling and making that dam higher." This witness gave other testimony of like import, and described the setup of the still, and the connection with the dam and ponded water in the operation of the still.

Witness H. S. Gambriel, for the state, testified: "I know defendant (appellant) and saw him at a still in August '28 and the still was in operation. When I saw the defendant it seems like he had a short handle shovel in his hand standing in the branch as far as from me to the wall over there, and there was a dam in the branch and a pipe from the dam to the condenser of the still. It seems like defendant raked a little in the branch with the shovel. The water was running through that pipe down to the condenser." On cross-examination, he stated: "Defendant was about as far as from here to the table by the wall over there and appeared to be raking something out of the branch."

State witness Thomas testified: "I have known the defendant forty years and I saw him on August 23rd, 1928, at a still and he was shovelling out the branch between the still and the spring, and there was a dam on that branch, and there was a pipe that led from the still up to the dam to carry...