The defendant was charged in the first count of the indictment with distilling, and in the second count with having in his possession a still to be used for manufacturing prohibited liquors. There was a verdict of guilt as charged in the first count.
The evidence for the state tended to show that the defendant and one Culpepper were carrying beer from barrels 20 or 25 feet away to a still from which "there was a drip from the pipe into the fruit jar, the dripping was a low grade of rum, a species of whisky, and contained alcohol."
The state witnesses had seen the still the night before, and were watching when the defendant and Culpepper went to the still about 6 o'clock in the morning. There was no fire under the still before the defendant reached there, and shortly thereafter fire was discovered by the state's witnesses. The still was hot, two full barrels of beer and two barrels containing some beer were found. The beer was fermented, and contained alcohol.
The defendant's evidence tended to show that he went to Culpepper's to see him about some cows that had broken in defendant's cornfield, that he had nothing to do with the still, or with the beer or the whisky, that he did not own or possess the still, that it was not on his place, that he did not make or aid *Page 391 in the making of the beer or the whisky. The charges are not numbered in the record, and for convenience we give them numbers.
Charges 1 and 9 relate to count 2; the defendant was convicted under count 1, and thereby acquitted of the charge in count 2 (possessing a still), hence he cannot complain that the court refused said charges. Parish v. State. 130 Ala. 92,30 So. 474.
Charge 2 is the affirmative charge for the defendant as to the first count of the indictment. There was ample evidence to submit to the jury the question of the guilt vel non of the defendant of making prohibited liquors, and the court did not err in refusing said charge.
Charges 3, 4, and 8 are not predicated on the evidence, and were properly refused. Edwards v. State. 205 Ala. 160,87 So. 179.
Charge 5 was properly refused. It was not necessary to a conviction under count 1 that the defendant should have "actually made the beer in question," if he was present aiding and assisting he was guilty. Henderson v. State, 156 Ala. 1,47 So. 76; 4 Michie's Ala. Dig. p. 52, § 33(4).
Charges 6 and 10 are abstract, and were properly refused. The defendant was guilty of making or aiding in making prohibited liquors, if he was guilty of any offense, and not of an attempt.
Evidently the word "from" is omitted from charge 7. The charge is faulty in giving undue prominence to a part of the evidence, is predicated upon a consideration of a part of the evidence and is abstract. Ross v. State, 139 Ala. 144,36 So. 718; Lodge v. State, 122 Ala. 107, 26 So. 200; Holmes v. State, 136 Ala. 80, 34 So. 180; Huskey v. State. 129 Ala. 98,29 So. 838.
There was no error in that portion of the oral charge of the court to which exception was reserved. Aiding or abetting in the making of prohibited liquors is a felony and not a misdemeanor.
We find no error in the record, and the judgment of the circuit court is affirmed.
Affirmed.