17 Ala. App. 579 - Taylor v. State

¶1The 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."

¶2The act under which the defendant was indicted reads as follows:

¶3"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.

¶4By demurrer, the defendant raises the proposition that the indictment should contain the allegations, "within this state," and "any part of which is alcohol."

¶5In 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.

¶6The phrase "spirituous liquors" in its ordinary sense means liquors composed in part or entirety of alcohol, produced by distillation, *580 and this being so, it was not necessary to allege in the indictment that the spirituous liquors were in part alcohol.

¶7Furthermore, section 29 1/2 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.

¶8It 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 1/2 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.

¶9The 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 So. 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.

¶10There is no error in the record, and the judgment of conviction is affirmed.

¶11Affirmed.

¶12

On Rehearing. Counsel for appellant in their application for rehearing are insistent that no predicate was laid for the admission of the defendant to the witness Watford, as the same appears in one part of the testimony, but concede that a proper predicate was laid for the admission by the defendant to the witness Watford, as the same appears in another part of the testimony, transcript; the admission on the part of the defendant being "that the still was his." A careful reading of the record in this case shows conclusively that there was but one conversation testified to between the witness Watford, and the defendant, or the sheriff. Alex May, or any one else in reference to the defendant's connection with the still alleged to have been owned and operated by him. When the state offered to prove by the witness Watford, in the first place, what was said by the defendant, it is true no predicate was attempted to be laid showing that the admission or confession was voluntary, but it was immediately following this that such qualifying questions were asked the witness and answers made as now lead appellant to concede that the proper predicate was laid for the admission of such confessions. In fact, the witness appears to have been qualified to meet the very objections raised at that time to his testimony, and it clearly appearing that the testimony referred to but one and the same conversation, there is no merit in appellant's contention.

¶13As stated in the original opinion, this was the same conversation, dealing with the same alleged admission, testified to by the witness May, and if error in admitting it in the first instance, the subsequent qualification of the witness, showing the confession to have been voluntary, cured such error.

¶14This much meets the objections raised by appellant, and establishes the correctness of the, court's ruling; but aside from this, there are other reasons shown by all of the testimony, upon which the correctness of the trial court's ruling could well be predicated.

¶15The application for rehearing is overruled.