Section 1 of an act of the Legislature (Acts 1919, p. 1086) reads as follows:
"It shall be unlawful for any person, firm or corporation in this state to manufacture, sell, give away, or have in possession any still, apparatus, appliance, or any device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages."
The unassembled parts of a still were found on the premises of the defendant, and one of the witnesses described it as "practically a complete outfit." There was evidence that the "thumper keg" smelled strong of whisky. The jury could infer that whisky had been manufactured in the still. If it had been used for that purpose this was very convincing evidence that the defendant had it in his possession, "to be used for the manufacture of prohibited liquors." The still was described as "practically a complete outfit." This means substantially a complete still. If this was a complete still, although the parts were scattered, and the "thumper keg" part of the still smelled strong of whisky, it was not incumbent upon the state to show that it was such as was commonly used or generally used or suitable to be used for such purpose. The statute is violated by having in possession a device capable of being used for manufacturing prohibited liquors or beverages when intended to be so used, even though it may not be one in common or general use or suitable to be used for that purpose. In the numerous cases that have arisen under this statute, devices of various types were used, many of which were not commonly or generally used, and many of which could hardly be said to be suitable to be used for making whisky. It is not necessary to a conviction that the parts of a still in possession are commonly or generally used or are suitable to be used for making liquor, if they can be so used and are in possession "to be used" for such purpose. Where only parts of a still are found, for instance, a "thumper keg" smelling strong of whisky and a worm and other parts, although one part may be missing, if the jury may infer from all the facts and circumstances in evidence that the device may be used for making liquor and is to be used for such purpose, it is not necessary that the state introduce a witness to testify that such parts were commonly or generally used or were suitable to be used for such purpose.
Section 2 of the act, supra, was not intended to increase the burden placed upon the state and require proof that the device was commonly or generally used for manufacturing prohibited liquors, or that it was suitable to be used for such purpose. This is the effect of the construction placed upon said section 2 by the majority opinion of the court. Witnesses not familiar with the operation of stills may detail facts and circumstances from which the jury may infer that the device is commonly or generally used or suitable to be used for manufacturing prohibited liquors, without testifying to such facts in ipsissimis verbis. The possession of any device which can be used and is to be used for the purpose of manufacturing prohibited liquors is a violation of the statute.
The charges 4 and 5, requested in writing by the defendant, were properly refused. It is not necessary that the device or substitute for a still be "sufficient to make prohibited liquors without the addition of any other parts."
Charge 3, given at the request of the defendant, states the law correctly on this point. Charge 6 invades the province of the jury and was properly refused. Charge 7, the affirmative charge for the defendant, was properly refused, as there was evidence *Page 65 upon which the jury were authorized to convict.
The application for rehearing should be granted and the judgment reversing the judgment of the lower court and remanding the cause should be set aside, and the judgment of conviction affirmed.