Ratliff v. State , 20 Ala. App. 454 ( 1924 )

The appellant was convicted of violating the prohibition laws. The first count of the indictment charged the manufacture of prohibited liquors, and the second count charged the possession of a still to be used for manufacturing prohibited liquors. There was a general verdict of guilty.

The indictment follows the language of the statutes under which each count was drawn, and was not subject to the demurrers interposed. It has been many times decided by the Supreme Court and this court that, where a statute creates a new offense and prescribes its constituents without reference to anything else, an indictment charging the offense in the terms of the act is sufficient. Mason v. State, 42 Ala. 543; Lodano v. State, 25 Ala. 64.

This court has repeatedly held similar indictments to be sufficient. Morris v. State, 18 Ala. App. 456, 93 So. 61; Oliver v. State, 16 Ala. App. 533, 79 So. 313; Holt v. State, 16 Ala. App. 399,78 So. 315; Eaton v. State, ante, p. 187, 101 So. 471.

The evidence for the state was directed to showing that the sheriff and other officers found the defendant and one Roseberry at a still, which had fire under it and was in operation. There were about five or six gallons of "warm whisky" there. There were five 60-gallon and four 30-gallon barrels. Part of the barrels had slop in them — slop is the refuse after the alcohol is gotten out. The defendant was dipping beer from a barrel and pouring it through a funnel into the still, and put pine on the fire. Upon seeing the officers the defendant ran and was arrested; his pants had beer slop on them.

The evidence for the defendant tended to show that he made no whisky and that he had no control, possession, or ownership of the still, and nothing to do with its operation; that he ran when the officers commenced shooting.

It was competent for the state to show by the witness Littlejohn that he found a 60-gallon still which was in operation and into which defendant was pouring beer. This was material to the issue of the operation and possession of the still by the defendant.

However, only a general objection was interposed, and where a general objection is interposed to a question the court will not be put in error for overruling the objection, unless the evidence elicited is patently illegal or irrelevant.

It was competent for the state to show that warm whisky was found at the still as tending to show that it had been recently manufactured there and in connection with the presence of the defendant pouring beer into the still, as tending to show that he manufactured the whisky.

Charge 1 refused to defendant was held good in Brown v. State,108 Ala. 18, 18 So. 811, and in Burton v. State, 107 Ala. 108,18 So. 284. But in the later cases it has been condemned as being argumentative, and the Brown Case and the Burton Case, supra, were expressly overruled on this point in Amos v. State, 123 Ala. 54,26 So. 524. The ruling in the Amos Case, supra, has been uniformly followed by the Supreme Court and this court.

Charge 4 refused to defendant was abstract as to count 2, and properly refused. The evidence in the instant case was positive and direct, as well as circumstantial, that the defendant was operating the still and exercising control over it.

Refused charge A was the affirmative charge for the defendant as to count 2, and was properly refused, as there was ample evidence if believed by the jury beyond a reasonable doubt to justify a conviction of the possession of a still.

Charge B was properly refused as abstract. If the jury believed the evidence beyond a reasonable doubt the defendant was guilty of making whisky and not merely of an attempt to manufacture it. There was evidence that about five gallons of warm whisky was found at the still, and the defendant was engaged in the manufacture of whisky.

Charges D and F state a correct proposition of law, but were abstract.

Charge H is substantially covered by given charge G, and by the oral charge of the court.

Charge I was the affirmative charge for the defendant as to the first count, and was properly refused. There was a conflict in the evidence, but there was ample evidence to justify a conviction.

Charge J was misleading and properly refused.

The judgment entry recited:

"Issue being joined in this cause upon the defendant's plea of not guilty, thereupon comes a jury of good and lawful men, to wit, Joe E. Lett, foreman, and eleven others who upon their oaths say, ``We, the jury, find the defendant guilty as charged in the indictment.'"

It is contended by the appellant that the minute entry does not show that the jury was sworn according to law.

Section 7274 of the Code of 1907 reads as follows:

"No criminal case taken by appeal to the Supreme Court shall be reversed because of any defect in the administration of the oath to any grand or petit jury, unless the record in the cause discloses the fact that some objection was taken in the court below, during the progress of the trial, based on such defect; but this rule shall not apply to cases where it appears affirmatively from the record that the appellant did not have the benefit of counsel on his trial in the court, from which the appeal was taken."

The appellant was represented by counsel. The defect here complained of, if it is a defect, was not called to the attention of the court during the progress of the trial. No objection or exception was taken in the court below.

The appellant cannot raise the objection for the first time on appeal. Garner v. State, 206 Ala. 56, 89 So. 69.

We find no error in the record.

The judgment is affirmed.

Affirmed.