Lathem v. State , 21 Ala. App. 489 ( 1926 )

The facts in this case, as shown by the state's witnesses are sufficient to go to the jury upon the guilt vel non of defendant. Elmore v. State, ante, p. 410, 109 So. 114 (8 Div. 349).

It is insisted in brief of counsel that, "Merely assisting in the operation of a still would not necessarily constitute possession." Whether the defendant was assisting at the still as owner, or as a hireling, or gratuitously, he would be guilty either as principal or accomplice, which under our law is the same thing. Code 1923, § 3196.

The only other error insisted on by appellant in the two briefs filed by his attorneys is that the court erred in refusing to give, at the request of defendant, refused charge 3. Defendant correctly states that this charge was held to be good in Doty v. State, 9 Ala. App. 21, 64 So. 170, and subsequently this court again held the same charge to be good (Jones v. State, 20 Ala. App. 660, 104 So, 771, in which several authorities were cited), but on certiorari of the Jones Case the Supreme Court held, speaking through Sayre, J.:

"It [charge 3] permits each juror to define a reasonable doubt according to his individual, it may be idiosyncratic view."

The charge is now held to be bad. Ex parte Jones, 20 Ala. App. 660,104 So. 773.

Other exceptions reserved are not insisted upon, but we have examined each, and found them to be without merit.

We find no error in the record and the judgment is affirmed.

Affirmed.