Ray v. State

McGowen, J.,

delivered the opinion of the court.

The indictment here was brought under section 1993, Code 1930, and charged that appellant “did then and there, knowingly, willfully, unlawfully and feloniously own, have in his. possession and under his control an integral part of a distillery commonly called a still,” etc.

There was no evidence of ownership of the still. It was being watched by the officers, witnesses for the state, and while they were shifting their position, when they again sighted the still, they saw appellant standing thereby with one hand on it. The still was not on appellant’s land or close thereto. Appellant saw the officers, ran, and evaded arrest for some days. This evidence is wholly insufficient to sustain a conviction for owning or having in possession a still or an integral part thereof.

The appellant moved to exclude the evidence when the state rested its case, which motion was, by the court, overruled, and thereupon appellant and other witnesses testified, in his behalf, to an alibi as a defense. At the close of the case, he did not request a peremptory instruction, and,, therefore, the case must be remanded.

Reversed and remanded.