Frachiseur v. State ( 1925 )

The defendant was convicted under an indictment charging in two several counts distilling prohibited liquors and having in his possession a still, etc. Under the authority of Glaze v. State (Ala.App.) 100 So. 629,¹ it would appear that the defendant may have been entitled to have given at his request the general affirmative charge as to the first count of the indictment; but as the evidence may be different on another trial, and as the case must be reversed on another ground, that question will not be here decided. Count 2 of the indictment charged that the defendant "* * * had in his possession a still, apparatus, appliance, or some device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages," etc. Under the rule laid down in Wilson v. State (Ala.App.)100 So. 914,² we hold that the general affirmative charge, requested in writing by the defendant, should have, under the evidence, been given as to this count, and for its refusal the case will be reversed. Other exceptions will not be treated, for the reason same may not arise upon another trial. Reversed and remanded.

¹ Ante, p. 7.

² Ante, p. 62.