NEELY v. STATE

(103 So. 386) NEELY v. STATE. (8 Div. 216.) (Court of Appeals of Alabama. March 24, 1925.) I. Intoxicating liquors <&wkey;236(19) — Evidence held ample to support verdict of guilty in prosecution for distilling or manufacturing. Evidence held ample to take case to jury and to support verdict of guilty in prosecution for unlawfully distilling or manufacturing alcoholic liquors. 2. Intoxicating liquors <&wkey;233(l) — Evidence of finding of shotgun at still held properly allowed. In .prosecution for distilling or manufacturing alcoholic bquors, evidence as to finding of shotgun at still held properly allowed. Appeal from Circuit Court,' Limestone County; Osceola Kyle, Judge. Jesse Neely was convicted of distilling, and be appeals. Affirmed. J. G. Rankin, of Athens, for appellant. Circumstances which do not connect tbe defendant with the commission of the crime charged should be excluded. Ballentine v. State, 19 Ala. App. 261, 96 So. 733. The mere fact that defendant was present at tbe still in operation is not sufficient upon which to base a conviction. Medders v. State, 19 Ala. App. 628, 99 So. 776; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Knight v.State, 19 Ala. App. 296, 97 So. 163. Harwell G. Davis, Atty. Gen., and Lamar Eield, Asst. Atty. Gen., for tbe State. Tbe evidence is ample to sustain a conviction. Glaze v. State, ante, p. 7, 100 So. 629. There was no error in admitting evidence that a gun was found at tbe still. Masters v. State, '18 Ala. App. 614, 94 So. 249. [MAJORITY — RICE, J.] RICE, J. -The defendant was convicted of tbe offense of distilling or manufacturing alcoholic liquors contrary to law, and be appeals. Tbe defendant introduced no evidence in bis own behalf. Tbe testimony offered by tbe state showed that a complete still was found in operation; that tbe defendant and two others were there; that there were six barrels of beer at the still; that there was beer in tbe still; that the beer was such as was used at a great many stills for making liquor; that sthe defendant was doing something about tbe cap of tbe still; that tbe defendant ran when tbe officers approached; that tbe beer was fermented, and contained alcohol; that defendant was working and moving around about the still; that be was moving around from tbe furnace end of tbe still to the cap; that tbe still was boiling, but there was no whisky running out; that a gun loaded with B. B. shot was lying about six or eight feet from tbe still; that an overcoat which tbe defendant said was bis, and which be got after his arrest was lying about six or eight feet from tbe still; that there was a small amount of whisky there (at tbe still). Upon this evidence, tbe defendant requested in writing tbe trial court to give tbe general affirmative charge in his behalf. Counsel for appellant has cited a number of decisions of this court in support of his com tention that there was error to reverse the case in the court’s refusal to give at defendant’s request the general affirmative charge in his favor. It would serve no useful "purpose to discuss these decisions separately, but suffice it to say that each of them is easily and obviously distinguishable on the facts from the instant case. Under the authority of the decision in the case of Glaze v. State (Ala. App.) 100 So. 629, and the references therein given, we hold that there was ample evidence in this case to be submitted to the jury, and to support the verdict returned. The trial court properly allowed the evidence as to the finding of the shotgun at the still. Masters v. State, 18 Ala. App. 614, 94 S. 249. No prejudicial error being apparent on the record, the case will be affirmed. Affirmed. Ante, p. 7. <Sr»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes