Weigart v. State

• Decision Date: 19 January 1965
• Docket Number: 8 Div. 976
• Citation: 188 So.2d 915,43 Ala.App. 277
• Parties: Leonard WEIGART v. STATE.
• Court: Alabama Court of Appeals

Page 915

188 So.2d 915

43 Ala.App. 277

Leonard WEIGART v. STATE.

8 Div. 976.

Court of Appeals of Alabama.

Jan. 19, 1965.

Rehearing Denied May 18, 1965.

W. A. Barnett, Florence, for appellant.

Richmond M. Flowers, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant, Leonard Weigart, was tried under an indictment returned by the Grand Jury of Lauderdale County charging him with manufacturing whiskey and possession of a still. He was convicted and sentenced for the possession of a still. Hence, this appeal.

Three law enforcement officers, Jim Lusk, Investigator in charge of the Alcoholic Tax Unit of the Revenue Service for the United States, Lauderdale County, Chief Deputy Sheriff George McCorkle, and Alabama Beverage Control Agent Penny Summers, made a raid on a still in Lauderdale County on July 7, 1963, at a point about two miles southwest of Anderson.

Mr. Lusk testified that he had been to the still site on a previous occasion, that on the day of the raid he and the two other officers drove in a car to a point about a half mile south of the still site, and that he, Lusk, got out of the car and walked to a point about thirty yards from the still, where he took a position to observe the still. He stated that from that position he saw a truck at the still site, that he 'could hear some moving and talking and some bumping going on down there and I couldn't see anybody,' and that he could see whiskey coming out of the condenser at the still. Mr. Lusk testified that after a minute or so he backed out of his position near the still and radioed instructions to the two other officers waiting in the car.

Mr. McCorkle, the first officer to reach the still, and the only witness who testified concerning the appellant's presence and activity at the still site, testified that he approached the site by car upon instructions from Mr. Lusk, and that when he got near the site he saw the appellant at the site standing up over a fifty gallon barrel holding a five gallon army G.I. can 'in a position like he was pouring something out' into the barrel. McCorkle testified that he could not tell whether anything was actually poured from the can but after the raid he smelled the can and it had a strong smell of whiskey.

McCorkle further testified that at about the same time he saw the appellant, a truck drove into the still site and two boys jumped from the truck and ran from the scene. McCorkle stated that, as he was approaching, the appellant took two or three steps away from the barrel and looked in the direction from which McCorkle was approaching, then turned back and ran through the still 'in between the thumper and the condenser' and attempted to flee the scene, and that he ran the appellant down and arrested him about 100 yards from the still and turned him over to A.B.C. Agent Summers.

Summers testified that while McCorkle and Lusk were out of sight, the appellant voluntarily said to him that he 'was just caught down there and ought not to have been there,' and that he 'would like to get out of it, get it settled and get out of it the easiest way he could, get it settled off.' The appellant admitted making these statements.

The State proved that all of the component parts of a still were present at the site and that each part was commonly and generally used for the purpose of manufacturing illegal whiskey.

Mr. Lusk testified that he examined the still after the raid, that a line between the thumper and the condenser was broken and steam was coming out of the line, that whiskey was still running from the condenser spout, that there was a one gallon jug under the condenser spout with whiskey in it, that there was an army G.I. can nearby, and that on a 'bank out above or next to the condenser was 25 gallons in a 50 gallon wooden barrel.' Mr. Lusk testified that he tasted and smelled the substance in the barrel and that 'it was whiskey.'

McCorkle testified that he did not notice that the line between the thumper and the condenser was down, or that steam was coming from the line, until he had returned to the still after arresting the appellant.

The still was located near a house occupied by a Mr. Parker, who was the record owner of the land upon which the still was operated, and the appellant's truck was found in the garage at Mr. Parker's house.

The appellant testified that he went to Mr. Parker's house on the day of the raid and blew the horn on his truck, and that no one came to the door; that he parked the truck in the garage because he did not want to leave it in the hot sun; that he got a hoe and hoed some cotton in the field 'to see how long it would take to work it if I bought it'; and that he returned the hoe to the garage after a while and walked back across the cotton patch and into a wooded area, thinking he might find some water, and discovered the still. The appellant further testified that he walked away from the still when he saw a car coming, that he did not touch the army can or any part of the still, and that he had no interest in the still and did not know it was there.

The mere presence of a defendant at a still, without more will not warrant a conviction for its possession, but, the courts of this state are committed to the theory that any act of the defendant in and about a still which indicates an interest in, or that he is aiding and abetting in the possession, may be taken as sufficient upon which to base a verdict of guilt. Purser v. State, 39 Ala.App. 169, 96 So.2d 689; Morrow v. State, 39 Ala.App. 204, 97 So.2d 545; Anderson v. State, 39 Ala.App. 400, 103 So.2d 796, Cert. Den. 267 Ala. 694, 103 So.2d 809; Mitchell v. State, 38 Ala.App. 546, 89 So.2d 238.

We are of the opinion that the evidence against the appellant was sufficient from which the jury could have inferred that the appellant had an interest in, or exercised some dominion over the still. No error resulted in the refusal of the general affirmative charge nor in the denial of the motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict.

The appellant reserved this exception to the court's oral charge: 'The defendant reserves an exception to the statement where the Court commented on a fact that's not supported by the evidence that it is the contention of the State that the man ran back toward the center of the still and knocked the line down. We take the position that's a comment on the evidence.'

The exception was apparently directed to the following statement by the Court: 'The State further contends that the defendant, upon the officers approaching, ran toward the center, so to speak, of the still and that as soon as they approached and looked that a line of the still was disconnected at that time and was broken.'

In response to the exception, the Court instructed the jury, ...