The first count in the indictment charged that the defendant distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol; and the second count charged that the defendant had in his possession a still to be used for the purpose of manufacturing prohibited liquors or beverages. The defendant interposed a plea of former conviction, said plea averring that he had heretofore on April 27, 1921, been convicted, in the United States court for the Middle division of the Northern district of Alabama of a violation of the National Prohibition Act (41 Stat. 305), and that said conviction was based upon the same matters and transactions as alleged in the indictment in this case. The state's counsel demurred to said plea on the ground that it was not an answer to the indictment and stated no defense. The trial court properly sustained the demurrer. A conviction or acquittal in a prosecution in federal court under the National Prohibition Act does not bar a subsequent prosecution in the state courts for a violation of the state prohibition laws based upon the same transaction. Gilbert v. State, ante, p. 104, 95 So. 502; Gamlin v. State, ante, p. 119, 95 So. 505.
The evidence of the state tended to show that the defendant was operating and in possession of a still from which whisky was running. The defendant denied having any interest in, or possession of, the still, or that he was connected with its operation.
The court did not err in permitting the witness Watson, upon being properly qualified, to testify that whisky could have been made from the beer which he found in the still, and from which whisky was actually being made. Veal v. State, ante, p. 168, 95 So. 783.
If the appellant's counsel is correct in his contention that the witness Watson was not shown to be qualified to give an opinion as to how whisky could have been made, the fact had already been established by competent evidence that whisky was actually being made from the beer inquired about. Admission of incompetent evidence is harmless error, where the fact to which such evidence relates is otherwise established by competent evidence. 4 Michie's Dig. § 776, p. 574.
Counsel for defendant requested the court orally to charge the jury that they might convict the defendant of a misdemeanor under count 1, the court refused the request, and defendant excepted. Requested charges must be asked in writing. Code 5364 as amended by Acts 1915, p. 815. Unless it affirmatively appears that the charge asked was in writing, the appellate court will not review the action of the lower court in refusing it. 4 Michie's Dig. § 571, p. 469.
Charges 1 and 2, the affirmative charge for defendant, were properly refused. The state's evidence tended to show that defendant was in possession of the still and was manufacturing whisky.
There, was no error in the court's refusal of charges Nos. 3 and 5 requested by defendant. The evidence without conflict showed that whisky was actually running from the still. If the defendant was guilty at all, he was guilty of making prohibited liquors, and not of an attempt to do so.
Charge No. 4, the affirmative charge for defendant, as to court No. 2 was properly refused. There was evidence that defendant was in possession of the still.
There is no error in the record. The judgment of the circuit court is affirmed.
Affirmed.