Opinion
5 Div. 332.
December 14, 1920.
Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.
Velpeau Moore was convicted of manufacturing prohibited liquors, in violation of Acts 1919, p. 6, § 15, a felony, and he appealed. Affirmed.
Following is charge 4, refused to the defendant:
The fact that a still or what purports to be a still was found near the defendant's house is not alone sufficient to convict the defendant of the offense charged in the indictment.
James W. Strother, of Dadeville, for appellant.
The court does not judicially know that mash beer is a malt liquor. 78 Ala. 417; 89 Ala. 112, 8 So. 56. Counsel discusses the assignments of error relative to the evidence, but without citation of authority. He insists that the new trial should have been granted. 73 Ala. 248; 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998.
J.Q. Smith, Atty. Gen., for the State.
No brief came to the Reporter.
A flake trough being a part of a distilling outfit, it was competent for a state's witness in testifying as to what he found while searching defendant's premises, on which he testified he found a still to testify that he found a flaketrough. The testimony was to a fact, and not a conclusion.
Lon Heard not having been examined as a witness for the state, his feeling towards the defendant was immaterial. The court did not err in sustaining the state's objection to a question seeking to elicit this testimony.
As to whether Mose Turner, a defendant's witness, had ever heard of defendant's making any whisky was not material, and objection to this testimony was properly sustained.
As to what Young, the state's witness, said to Booker Moore, after Young had been to defendant's house, was not material to the issues and could not be made so, except for the purpose of impeaching Young's testimony, and that could only be done by laying the proper predicate. This was not done, and the state's objection to the question as to what Young said after the raid had been made was properly sustained.
While Lon Heard was being examined as a witness, on rebuttal, defendant's counsel asked this question, "You stayed out there on the road one night and threatened to kill him, didn't you?" The state objected, the court sustained the objection, and the defendant excepted. The question was objectionable. It assumed a fact not proven and called for testimony not relevant to any issue in the case.
The court in its oral charge was in error in charging the jury, "If within three years before the finding of the indictment the defendant made or manufactured liquors they will find him guilty," but upon his attention being called to the error it was explicitly corrected before the jury retired.
Charge No. 4 singles out a part of the evidence, and for that reason was properly refused.
There was sufficient evidence to go to the jury on the question of guilt or innocence vel non of the defendant, and for that reason the general charge was properly refused.
For the foregoing reasons the court did not err in refusing the motion for a new trial.
We find no error in the record, and the judgment is affirmed.
Affirmed.