Lee v. State

99 So. 56, 19 Ala. App. 569, 1924 Ala. App. LEXIS 33

• Court: Alabama Court of Appeals
• Decided: February 5, 1924
• Docket: 7 Div. 970.
• Status: Published

Opinion

BRICKEN, P. J.

The first count of the indictment charged that the defendant, George Lee, distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which- whs alcohol.

The second count charged him with unlawfully possessing a still, etc., to be used for the purpose of manufacturing prohibited liquors or beverages.

There was a general verdict of guilty as charged in the indictment, and judgment of guilt, “as charged in the indictment,” was pronounced, from which this appeal is taken.

[1,2] The principal assignment of error insisted upon is the refusal of the court to' give the affirmative charge in favor of defendant as to the first count of the indictment. This insistence appears well tdken and must be sustained; this is conceded by the Attorney General, representing the state on this appeal, for the reason that there is a total lack of evidence showing or tending to show that alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcoholic, had been made or manufactured by defendant or by any one else at the time and place shown by the evidence of the state. This being true, the defendant was entitled to the general affirmative charge as to the first count of the indictment, and, as the verdict of the jury referred to .the charge contained in the indictment as a whole, the error in refusing said charge necessitates a reversal of the judgment appealed from.

This case is not unlike that of Williams v. State, 18 Ala. App. 321, 92 South. 21. See, also, Fillmore v. State, 18 Ala. App. 334, 92 South. 94; Morris v. State, 18 Ala. App. 456, 93 South. 61.

Reversed and remanded.