I cannot agree with the majority opinion in this case, and the following express my ideas on the question of evidence, upon which I disagree with may associates:
The witness Lane testified for the state that he found at the defendant's house a lard can that held about twenty gallons, and two pieces of pipe in this dining room, and a barrel of beer out in his crib; that a bucket of some kind was used for a cap; the can we found had been used around the fire, *Page 469 smoked; the condition of the inside of the can showed it had been mash in there, beer, it smelled like beer; that he was familiar with whisky stills, had seen them in operation, a good many of them, over a long period, a good many years. The court thereupon allowed the witness to answer "that it (what was found there) was suitable for making whisky." In this ruling there was no error. This character of evidence was a conclusion of facts, which are denominated by our courts "shorthand rendering of facts," to distinguish them from mere gratuitous opinions and conjectures of the witness.
We can draw no reasonable difference between this statement and the statements that, on a prosecution for using abusive language in the hearing of females, a witness May state that in his opinion the females were near enough to have heard it, Rollings v. State, 136 Ala. 126, 34 So. 349; that a witness may give his opinion whether or not one man could have fired several shots where he was in a position to see the flashes of light and to hear the reports from the shots, Kroell v. State,139 Ala. 1, 36 So. 1025; Mayberry v. State, 107 Ala. 64,18 So. 219; that a witness may state whether or not there were two tracks of the same or different kinds, Littleton v. State,128 Ala. 37, 29 So. 390; Terry v. State, 118 Ala. 79,23 South, 776; that a witness may state that certain work was done in a work-manlike manner, 7 Mayfield, Digest, p. 320; that a witness may properly be asked the question, "Was that ditch any deeper than was necessary in order to make it take off the water?" Alexander v. Smith, 3 Ala. App. 510, 57 So. 104; that in an action for death under a locomotive, witness could say whether the engineer could have seen deceased, Porter v. L. N. R. R., 202 Ala. 139, 79 So. 605; that in a prosecution for carrying a pistol concealed about one's person, a witness may state that he "saw something in defendant's right hip pocket that looked like a pistol," Mayberry v. State, 107 Ala. 64,18 So. 219; that in an action to recover damages for the conversion of cotton raised on lands of the plaintiff, whereby the lien of the plaintiff was lost, a witness, although he stated he did not know how much cotton was raised on certain land, may nevertheless give his best judgment as to how much cotton was raised on this particular land, Baker v. Cotney,142 Ala. 566, 38 So. 131; that a witness may give his opinion as to whether certain shots that he heard were fired from a large or small caliber pistol, Suttle v. State (Ala.App., present term) 92 So. 531;2 that on a trial under an indictment for murder, it was competent for a witness to testify that the unexploded cartridges in the pistol which was taken from the defendant looked as if they had been recently snapped, Orr v. State, 117 Ala. 69, 23 So. 696; that on a prosecution for vagrancy a witness may testify that a certain hotel was a gambling house, Brannon v. State, 16 Ala. App. 259, 76 So. 991; Ex parte Brannon, 201 Ala. 695, 77 So. 999; that a witness may state in a homicide case that he heard deceased "cursing" just at or prior to the homicide, Johnson v. State,15 Ala. App. 194, 72 So. 766; Fuller v. State, 117 Ala. 36,23 So. 688; and many other cases, decided by the Supreme Court and this court, all of which authorities are collected in 7 Mayfield, Digest, p. 320.
The Rowlan Case, relied on by the majority opinion, seems to lay down this test, as to the introduction of evidence of the character under discussion:
"Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind."
How the fact of the smell of the beer on the lard can, as testified to by the witness Lane, could be reproduced and made apparent to the jury, might be a pertinent inquiry under the Rowlan Case. Moreover, the testimony shows that the can, pipes, and other things found by the witness Lane had all been destroyed.
The principal fact to be proved was that at a particular time the defendant was in possession of a still, apparatus or appliance, or any device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors. The fact that he had at that time in his possession something, some appliance, apparatus, device, or substitute therefor, that was suitable to be used in the manufacture of prohibited liquors, was material and relevant; it had a tendency to prove the principal fact, that being suitable to be used for this purpose, its possession was for such purpose; consequently the law-makers declared in section 2 of the act that —
"The unexplained possession of any part or parts of any still, apparatus, appliance or any device or substitute therefor, commonly or generally used for or that is suitable to be used in the manufacture of prohibited liquors and beverages shall be prima facie evidence of a violation of this act."
The witness was subject to cross-examination, and if a more particular description of the articles, apparatus, or appliances was deemed necessary, it could have been elicited, and it may be the weight of the evidence lessened or destroyed; but of itself the evidence was admissible.
The above cases, clearly to my mind, lay down the rule as to exceptions which makes the testimony admissible. I can therefore see no reason for making the case at bar an exception to the exception rule.
2 Ante, p. 223. *Page 470