Murphy v. State

• Decision Date: 13 March 1928
• Docket Number: 8 Div. 635
• Parties: MURPHY v. STATE.
• Court: Alabama Court of Appeals

115 So. 771

22 Ala.App. 370

MURPHY v. STATE.

8 Div. 635

Court of Appeals of Alabama

March 13, 1928

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Luther Murphy was convicted on an indictment charging (first count) manufacturing whisky, and (second count) the unlawful possession of a still, and he appeals. Reversed and remanded.

James C. Roberts, of Florence, for appellant.

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

SAMFORD J.

The state's witnesses testify to having found a still at which this defendant and his brother were present and doing certain acts tending to prove ownership. It was also in evidence that there were five barrels and a box there, and there was evidence that the still had been recently used. How long before does not appear. So that we may say the evidence tends to prove a still of some kind or character in Lauderdale county; that this still had at some time recently before the officers found it been used; that the defendant and his brother came down to the still and began making preparation to use the still again. The testimony affirmatively shows that there was no prohibited distilled liquor there, and the evidence fails to show, if it was a fact, that the so-called "beer" contained alcohol. There was no evidence that this still had been, was about to be, or was suitable to be used in the manufacture of prohibited liquors or beverages. For aught appearing in this record, the still might have been designed and used for the distillation of turpentine or other products requiring distillation.

The law is perfectly plain. It is the manufacture of spirituous vinous, or malt liquors or beverages, a part of which is alcohol, and the possession of any still, apparatus appliance, or any device or substitute therefor to be used for the purpose of manufacturing prohibited liquors or beverages, that is condemned by sections 4627 and 4656 of the Code of 1923. There is no evidence in this record that any prohibited liquor had ever been manufactured or made at the place where the still was found. There is no evidence that the still was, or was to be, used in the manufacture of prohibited liquors, and even admitting that there was sufficient evidence to connect the defendant with the possession of the still at the time fixed by the officers there is no evidence that this defendant made or manufactured any of the prohibited liquors named in the statute. In these...