Taylor v. State , 17 Ala. App. 579 ( 1920 )

MERRITT, J.

The appellant was convicted under an indictment which charged that he “did distill, make or manufacture alcoholic or spirituous liquor subsequent to the 25th day of January, 1919, against the peace and dignity of the state of Alabama.”

The act under which the defendant was indicted reads as follows:

“That any person, firm or corporation who shall, within this state distill, make or manufacture any alcoholic, spirituous, malted or mixed liquors or beverages, any part of which is alcohol, shall be guilty of a felony,” etc. Acts 1919, p. 16, § 15.

[1] By demurrer, the defendant raises the proposition that the indictment should contain the allegations, “within this state,” and “any part of which is alcohol.”

In view of Code 1907, § 7140, it was not necessary to allege in the indictment where the offense was committed, this being a matter of proof.

[2] The phrase “spirituous liquors” in its ordinary sense means liquors composed in part or entirety of alcohol, produced by disfiliation, and this being so, it was not necessary to allege in the indictment that the spirituous liquors were in part alcohol.

[3] Furthermore, section 29% of an act approved January 23, 1915 (Acts 1915, p. 30), provides that it shall not be necessary to set out in the indictment, complaint, or affidavit, the kind of prohibited liquors manufactured, sold, or otherwise disposed of, and the act of January 25, 1919, under which the defendant was indicted, being a supplemental act and not a complete revision of the laws upon the subject-matter involved, it was therefore unnecessary that the indictment should contain any such allegation.

[4] It having been shown that a still was found by the witness May and Watford in operation about one quarter of a mile from defendant’s home; that the still was making rum; that at the still was found 5 empty barrels, two barrels of beer, and 2 gallons of rum, 5 empty jugs, 2 fruit jars filled with flour and water — it was perfectly competent to prove that at this time these same witnesses found at defendant’s home 5% gallons of rum in jugs, as tending to connect the defendant with the manufacture of prohibited liquors. Salter v. State, ante, p. 517, 85 So. 847.

The proper predicate was laid in this case for the admissions made by the defendant to the witness Watford. Stevens v. State, 138 Ala. 71, 35 South. 122. Furthermore, this was the same conversation testified to by the sheriff, May, and his testimony also discloses that the proper predicate was laid for the admission of the defendant.

There is no error in the record, and the judgment of conviction is affirmed.

Affirmed.