BIDDLE v. STATE

(99 South. 59) (7 Div. 911.) BIDDLE v. STATE. (Court of Appeals of Alabama. Feb. 5, 1924.) 1. Intoxicating liquors <&wkey;>l37 — Mere presence at still when whisky made no violation of law. It is not a violation of a law for a man to be present at a still, when whisky is being made. 2. Intoxicating liquors c&wkey;>236(4) — Evidence held insufficient to sustain conviction. In a prosecution for distilling intoxicating liquors, testimony tending only to show that defendant was present at a still when whisky was being made was insufficient to sustain a conviction. Appeal from Circuit Court, De Kalb Coun-‘ ty; W. W. Haralson, Judge. Adolphus Biddle was convicted of distilling, and appeals. Reversed and remanded. Isbell & Scott, of Fort Payne, for appellant. The evidence was not sufficient to justify a conviction. Moon v. State, ante, p. 176, 95 South. 830; Lee v. State, 18 Ala. App. 566, 93 South. 59. Harwell G. Davis, Atty. Gen., for the State. No brief reached the Reporter. [MAJORITY — SAMFORD, J.] SAMFORD, J. It is not a violation of the law for a man to be present at a still when whisky is being made. This was all the testimony for the state tended to show. If a defendant is present at a still located oñ his own premises or premises under his control, a different question would be presented. The "affirmative charge should have been given for the defendant as requested. Moon v. State, ante, p. 176, 95 South. 830; Farmer v. State, ante, p. 560, 99 South. 59. The judgment is reversed, and the cause is remanded. Reversed and remanded.