Hallmark v. State ( 1924 )

The indictment contained two counts. The first count charged the manufacture of prohibited liquors; the second count charged the possession of a still. There was demurrer to the first count on the ground that it stated the offense in the alternative and failed to specify what constituted the liquors or beverages therein mentioned. The first count charged, in the words of the statute, that the defendant "did distill, make, or manufacture alcoholic, spirituous, malted, or mixed liquors or beverages, some part of which was alcohol," etc. The second count charged that the defendant "manufactured, sold, gave away, or had in possession a still, apparatus, appliance, or some device or substitute for a still, apparatus, or appliance to be used for the purpose of manufacturing prohibited liquors or beverages," etc.

There was demurrer to the second count on the grounds that it failed to "specify or particularize what constitutes the apparatus therein mentioned"; "that it states the offense in the alternative"; and "that it fails to specify the substitute for the still, apparatus, or appliance therein mentioned."

The count was in the words of the statute. The indictment sufficiently charged the offenses in the statutory language. Miller v. State, 19 Ala. App. 229, 96 So. 718; Masters v. State,18 Ala. App. 614, 94 So. 249; McLain v. State, 15 Ala. App. 24,72 So. 511; Porter v. State, 15 Ala. App. 218, 72 So. 776. The demurrers to the indictment were properly overruled.

It was competent for the state's witness Gay, after having been first qualified, to testify that from his experience and knowledge beer at the stage found by the officers raiding the still had alcohol in it. Mitchell v. State, 19 Ala. App. 248,96 So. 653; Veal v. State, 19 Ala. App. 168, 95 So. 783.

The oral charge of the court does not appear in the transcript. Where the oral charge is omitted from the transcript on appeal, no error prejudicial to an appellant in refusing special requests for instructions is shown, unless the contrary appears, and the presumption is indulged that the oral charge substantially covered the subject of such refused special request for instruction. Gay v. Taylor, 208 Ala. 376, 94 So. 473.

There is no error in the record. The judgment of the circuit court is affirmed.

Affirmed.

On Rehearing.