Vandiver v. State

• Decision Date: 03 November 1953
• Docket Number: 8 Div. 244
• Citation: 73 So.2d 566,37 Ala.App. 526
• Parties: VANDIVER v. STATE.
• Court: Alabama Court of Appeals

Page 566

73 So.2d 566

37 Ala.App. 526

VANDIVER v. STATE.

8 Div. 244.

Court of Appeals of Alabama.

Nov. 3, 1953.

Rehearing Denied March 16, 1954.

Rogers & Tyree, Florence, Wm. Stell, Russellville, for appellant.

Si Garrett, Atty. Gen., Wm. H. Sanders, Asst. Atty. Gen., for the State.

The following charge was refused to defendant:

'A-4. I charge you, Gentlemen, that the fact that the defendant, Woodrow Vandiver, was accused of and was arrested for having in possession the still testified about, and the fact that the grand jury found an indictment against him in this case, are not facts or circumstances to which you are allowed to look in this case, in considering the case, and I charge you that the indictment is neither a circumstance in law or fact showing or tending to show that the defendant is guilty of the charge, and I further charge you that the defendant, Woodrow Vandiver, is presumed by the law of Alabama not to have had the still in possession and that presumption goes with him to your verdict unless the evidence convinces you beyond a reasonable doubt and to a moral certainty of the truth of every element necessary to show guilt.'

PRICE, Judge.

Appellant, Henry Woodrow Vandiver, and one Walter D. Riggs were jointly indicted and tried together. The indictment charged in Count one the offense of distilling prohibited liquors and in Count two, the illegal possession of a still. When the State had rested its case the defendant moved to exclude the evidence as to both counts of the indictment. The State then asked for a nolle prosequi as to Count one. The court granted the defendant's motion as to Count one and denied it as to Count two. Both defendants were found guilty as charged in Count two.

Appellant was sentenced to imprisonment in the penitentiary for a term of five years. Riggs is not a party to this appeal.

The State's evidence was presented by three federal agents and a deputy sheriff. Each witness testified he was a member of a party of five officers that raided a still nine miles northeast of Florence, in Lauderdale County, on Sunday morning, May 25, 1952. The evidence showed the fifth officer had been transferred from the district and he was not a witness in the case. The officers made two or three trips to the still site during the week prior to the raid but saw no one at the still on those visits.

The still was located near a small waterfall in a large hollow which ran east and west. The waterfall was in a pit or depression where the little stream had eaten out the earth, forming a hole with irregular edges all around, its sides ranging three feet or more in depth. The pit was surrounded by foliage, weeds and underbrush. The surrounding terrain was rough and mountainous.

On the morning of the raid the officers separated a mile from the still. Agent Yielding approached it alone. Deputy sheriff Dhority and agent Fisher approached the spot together and agents Powell and Williams came in from the opposite side.

The witness Fisher testified he was crawling and at a point about thirty yards from the still he could see two men's heads moving around in the vicinity of the still. When he reached the bank and looked down into the still yard Vandiver was squatting by the cooling stand at the condenser. He could not see his hands. Riggs was standing beside Vandiver, facing him. When he handcuffed Vandiver he noticed fresh dough on his hands. There was also fresh dough on the spout that came out of the condenser from the stand. Riggs also had the same type dough on his hands.

The witness Dhority testified as he crawled up to the still he could see two heads moving about but never saw either of the men doing anything with their hands. He saw dough on Vandiver's hands when he was arrested and the same type fresh dough was on the condenser where the worm comes out.

Witness Powell worked his way down a steep hillside covered with underbrush. He could see a man wearing a khaki shirt standing on top of the still stirring the mash through the cap hole in the still and saw a man in a blue shirt walk through the still yard. When witness reached the still he saw that Riggs was the man stirring the mash, and defendant was the man in the blue shirt.

It was admitted by defense counsel that a coat lying on a shelf in the still yard belonged to Vandiver.

Witness Yielding testified that as he moved in to the still he could see two men from the waist up. The one in the khaki shirt was up on the still head stirring the mash. He saw the man wearing a faded blue shirt punch up the fire and go over to the cooling barrel. When he reached the still he saw that Vandiver, whom he had known for three years, was the man in the blue shirt.

The officers testified a complete still was found. A fire was burning in the furnace and the mash was hot and 'Just beginning to roll' or boil.

The testimony of defendant's witnesses was to the effect that defendant was with a group of people fishing for minnows at the 'Little Dam' in Florence early on the morning of May 25. Morgan Vandiver had an automobile and it was suggested that the entire group go to Happy Hollow on Shoals Creek to fish. Riggs and two of the others had trot lines at Happy Hollow. Since there were twelve in the group Morgan Vandiver took the defendants Riggs and Vandiver to the bus station to take a bus.

The other ten (Morgan Vandiver, his wife Methyl, their four children, Silas Chaney and his wife, Frank Brown and Johnnie Jackson) drove to Happy Hollow in the car. Morgan and Methyl Vandiver and Silas Chaney testified as defendants witnesses. Frank Brown and Johnnie Jackson were out of the State at the time of the trial.

Johnnie Jackson had a motorboat and he took the group across Shoals Creek to the mouth of the hollow and went back and picked up the defendants when their bus arrived. When defendants reached Happy Hollow they found the group fishing, except for Silas Chaney, Morgan Vandiver and Frank Brown. The testimony was to the effect that these three had gone up the hollow a short distance to set minnow traps. Chaney noticed smoke up there and he and Frank Brown went to the still site. They found a man operating the still and asked if he had any liquor. He replied: 'No, but I will have in a few minutes.' When they returned to the group defendants had arrived and were fixing dough balls to use for fishing. When told of the still defendant Vandiver said 'I believe I will go, I'd rather have a drink of whiskey than a mess of fish.'

Riggs stated that the man Chaney mentioned was at the still when they arrived and told defendants he would have some whiskey ready in a few minutes and they sat down to wait. Shortly thereafter the operator left to get vessels to catch the whiskey in and after he had gone the officers came.

The defendant did not testify as a witness.

State's witnesses Dhority and Yielding testified in rebuttal after proper predicate and over defendants' objections that in the automobile on the way to the jail after the arrest Vandiver stated in Riggs' presence that they got off the bus up on the highway and walked from there through the woods to the still and that his purpose in going to the still was to get some whiskey.

Defendant urges for a reversal the insufficiency of the evidence to sustain the verdict. It is insisted that the evidence shows no more than the presence of defendant at a still on land not in his possession or under his control and argues that 'our Alabama courts have clearly and unquestionably held time and time again that mere presence at a still, connected with one or two isolated acts in and about the still, is wholly insufficient to convict upon the charge of possession of a still.'

It is true that the mere presence of a defendant at a still, without more, will not warrant a conviction for its possession, but our courts hold that 'any act of the defendant in and about a still which indicates an interest in, or that he is aiding or abetting in the possession, may be taken as sufficient upon which to base a verdict of guilt.' Lock v. State, 21 Ala.App. 81, 105 So. 431, 432; Rikard v. State, 31 Ala.App. 374, 18 So.2d 435, certiorari denied 245 Ala. 677, 18 So.2d 436; Hudson v. State, 249 Ala. 372, 31 So.2d 774.

The incriminating facts and circumstances presented a jury question and were ample to sustain the judgment of conviction. There was no error in the overruling of the motion to exclude the State's evidence nor in refusing the general affirmative charge or denying the motion for a new trial on the ground the verdict was contrary to the evidence.

Defendant's witness, Dan Glenn, a professional photographer, stated he went with defendants Vandiver and Riggs to a still site about two miles off the road between St. Florian and Shoals Creek bridge. He described a waterfall at the site. The court sustained the State's objection to the questioning of the witness because the place had not been sufficiently located.

Witnesses Gray and Hill then testified they were taken to the still site by defendants in July. They described the hole or pit. Gray stated he closely examined the pit and the surrounding terrain from distances varying from sixty yards, standing on a log, to the edge of the pit, to see whether or not any activity of a man in the hole could be observed. The defendants were standing in the hole and he was wholly unable to see more than their heads or the tops of their upraised hands at 15 or 20 yards from the hole. Gray was shown photographs, defendants exhibits Nos. 1, 2 and 3 and he stated they fairly portrayed the scene defendants took him to. He said there was no freshly cut timber or any evidence of recent clearing or change in the foliage. Hill described the foliage around the hole and still site. Riggs stated in his testimony that the photographer accompanied defendants to the still site and the photographs were made there. He testified the photographs accurately portrayed the site in...