The indictment was against the defendant and another. On the trial the other defendant was acquitted, and this defendant alone prosecutes this appeal.
There were numerous objections and exceptions to the introduction of evidence, but it will not be necessary to pass upon each exception specifically, other than herein appears.
We have several times held that a witness who knows can state as a collective fact that a certain apparatus found is "a complete still outfit"; his knowledge of whether it is or not being subject to test by cross-examination. *Page 169
A witness will not be permitted to testify that a still had been recently used, that being a conclusion. The witness should state the facts describing the condition of the apparatus, leaving to the jury the conclusion to be drawn from the facts testified to. In this case the witness had already testified to the facts from which a recent use of the still might be inferred by the jury, and the conclusion was for the jury, and not the witness.
Witnesses who are shown to have a knowledge of such things may testify as to the "kind of beer being used and as to how and from what whisky or rum is made."
The state was permitted, over the timely objection and exception of defendant, to prove the finding of other stills in the same swamp in which was the still for which the defendant was being prosecuted. The defendant was in no way connected with these other stills. The possession or operation of these other stills were distinct offenses, and it is a well-settled rule that upon the trial of an indictment charging one offense evidence of another and distinct offense, though of the same nature, is not admissible. Childers v. State, 18 Ala. App. 396,92 South, 512.
There was ample evidence to justify the refusal of the general charge as requested by the defendant, but for the errors pointed out the judgment must be reversed, and the cause is remanded.
Reversed and remanded.