The indictment against this appellant contained two counts. The count for unlawful possession of a still was charged out by the court at request of defendant. This, of course, operated as an acquittal of the charge contained in the second count.
Under the first count the jury returned a verdict of guilty of an attempt to make, manufacture, or distill prohibited liquors. The defendant requested in writing the affirmative charge as to this count, and, as there was no evidence adduced upon this trial upon which the verdict rendered could be predicated, the court committed reversible error in refusing said charge. This is a companion case to that of Rubin Sanford v. State (7 Div. 187) 104 So. 778.1 Under authority of that case also the judgment appealed from is reversed and the cause remanded.
Reversed and remanded.
1 20 Ala. App. 642.