Minirth v. State

117 So. 2d 355, 40 Ala. App. 527, 1959 Ala. App. LEXIS 305

• Court: Alabama Court of Appeals
• Decided: November 10, 1959
• Docket: 7 Div. 586
• Status: Published

Opinions

CATES, Judge.

Minirth was caught by a Federal revenue agent at a still. The still was fired up but had not been capped.

When arrested Minirth stated the still was his and Mig Mayner’s and that he was distilling because he needed money.

One of the agents testified the apparatus was a complete still although uncapped and without the condenser or lead pipes hooked up. The other agent, on cross-examination, stated:

“Q. I will ask you whether or not, again, you could have made whiskey in that still ?

“A. Yes, sir, you could.

“Q. Will you tell the Court how you could have made that whiskey without doing any more to that still ?

“A. Yes, sir. Your fumes that come off that still when it is heated, the vapor is alcohol; that is whiskey. In order to use it it has to be condensed. In the olden days you have heard the term ‘corn squeeze’. That came from throwing a blanket over this opening, catching these fumes and squeezing them out; it didn’t have a cap or condenser.”

Minirth took the stand and denied any interest in the still or any part in its opera- • tion. He had only gone to the still yard to get some whiskey. He had confessed nothing.

We consider there was sufficient evidence to allow the jury to choose bet.ween the defense and prosecution, even without reference to the rule as to having component parts of a still under Code 1940, T. 29, § 132.

No exception was taken to the oral charge. Minirth moved the court to give four written charges, two of which the judge refused, viz.:

“2. I charge you gentlemen of the jury that the mere presence of the defendant at a moonshine still on premises not his own will not warrant a conviction for illegal possession.

“4. I charge you gentlemen of the jury that unless you are convinced from the evidence beyond a reasonable doubt that the defendant had in his possession a complete still over which he exercised some dominion, your verdict must be for the defendant.”

Charge 2 leaves out the effect of § 132, supra. Also, as the trial judge aptly stated on denying a new trial, “possession” should have been followed by “of a still,” otherwise the jury could have misconsidered Minirth’s presence under possessing whiskey, a crime for which he was not on trial.

Charge 4 is bad because (a) count 1 of the indictment charged Minirth unlawfully distilled, hence an acquittal under possession of a still might not necessarily free him of making whiskey as an aider; (b) “a complete still” is misleading under § 132, supra; and (c) aiding and abetting under the evidence could have fitted Minirth’s actions as much as the role of principal.

We have carefully considered the entire record and consider the judgment should be

Affirmed.