(dissenting).
I cannot follow the reasoning of the majority opinion, nor can I see any reasonable distinction between the cited prohibition law statutes and the ones dealing with stink bombs. The cited prohibition law statutes probably have been construed as often as any of our penal statutes in the past thirty-eight years, and to my mind, they furnish settled and established guidance for application to the instant case.
Title 29, § 131, Code 1940, makes it unlawful for a person to “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.”
Title 14, § 369, Code 1940, makes it unlawful for any person to “have in their possession for the purpose of making, producing or manufacturing any stink bomb, or tear gas bomb, or any substitute or device therefor, any of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor.” I submit that the only difference in the two parts of the quoted statutes is the position of the phrase “for the purpose of” in the two sentences, and that, in effect, the two statutes have the same legal significance in relation to their respective subjects.
Title 29, § 132, reads:
“The unexplained possession of any part or parts of any still, apparatus, or 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 violation of this article.”
Our cases hold that in “possession” cases, §§ 131 and 132 must be considered together. Section 132 is a rule of evidence; it creates no crime and fixes no penalty, but simply fixes what will be prima facie evidence of a violation of the preceding section of the code when certain facts are proven, which are the unexplained possession of any part or parts of any still, apparatus or appliance, or any device or substitute therefor, commonly or generally used for, or suitable to be used in the *264manufacture of prohibited liquors or beverages. Little v. State, 27 Ala.App. 119, 166 So. 618.
It would be a violation of § 131 if a person possessed any still, apparatus, appliance or other device for the purpose of manufacturing prohibited liquors, whether such devices were or were not generally used or are suitable to be used for such purpose. But in order for the possession of the devices to make out a prima facie case under § 132, they must be of such character as in common use are suitable for the purpose of manufacturing liquor. Wilson v. State, 211 Ala. 574, 100 So. 917. The possession of a complete still is not unlawful unless it is for the purpose of manufacturing prohibited liquors. This is a constituent element of the offense denounced by the statute. Masters v. State, 18 Ala.App. 614, 94 So. 249; Reese v. State, 18 Ala.App. 357, 92 So. 77; Gamble v. State, 19 Ala.App. 82, 95 So. 202; Wilson v. State, supra.
Under these two sections, the possession of certain enumerated articles has been held sufficient to support a conviction:
(1) A tub, a trough containing some wet meal and one or two little cans or buckets such as are used for dipping water. Arthur v. State, 19 Ala.App. 311, 97 So. 158.
(2) A can and a copper worm that defendant testified that he had found. Bell v. State, 20 Ala.App. 150, 101 So. 158.
(3) A 100-pound lard can, a trough and a cap. Harvey v. State, 20 Ala.App. 264, 101 So. 512.
(4) A copper still can and still cap in the loft of defendant’s dwelling house. Watford v. State, 21 Ala.App. 428, 109 So. 174.
(5) A lard can, a cap and some mash. Whigham v. State, 21 Ala.App. 454, 109 So. 281.
(6) A copper worm, some pipe and some copper connections in a wagon which defendant was driving along a road. Horton v. State, 22 Ala.App. 114, 113 So. 279.
(7) “Parts of a still” which defendant claimed he possessed for a perfectly legitimate purpose. Jones v. State, 25 Ala.App. 346, 146 So. 424.
The statute relating to the possession of ingredients for manufacturing stink bombs as being prima facie evidence is Tit. 14, § 370, which reads:
“When any person or persons are found in possession of any of the ingredients which are commonly used for making, producing or manufacturing any such stink bomb or substitute or device therefor, except a regular licensed druggist or chemist or except a person who has the same in possession for medicinal or domestic purposes, such possession shall be prima facie evidence that such person had the same for the purpose of making, producing or manufacturing such stink bomb or tear gas bomb or substitute or device therefor, or for the purpose of depositing, throwing or disposing of the same in violation of sections 369-371 of this title, and the burden of proof shall rest upon the defendant to prove that such articles or ingredients were in his possession for lawful purposes not prohibited by sections 369-371 of this title.”
This section corresponds to Tit. 29, § 132, except that it specifically exempts a regular licensed druggist or chemist or a person who has the ingredients in his possession for medicinal or domestic purposes.
Thus, just as Tit. 29, § 131, makes it unlawful for a person to possess an appliance to be used for the purpose of manufacturing prohibited liquors, so Tit. 14, § 369, makes it unlawful for a person to have in his possession any ingredients used to produce stink bombs for the purpose of manufacturing such stink bombs. Certainly, it would seem that § 369, Tit. 14, no more “makes the mental attitude of the actor the sine qua non of the offense” than does § 131, Tit. 29.
Also, just as Tit. 29, § 132, makes the unexplained possession of any part of a still commonly used for the manufacture *265of prohibited liquors prima facie evidence that the defendant possessed a complete still for the purpose of manufacturing prohibited liquors, so Tit. 14, § 370, makes the unexplained possession of any ingredients commonly used for the making of stink bombs prima facie evidence that the defendant possessed such ingredients for the purpose of manufacturing such stink bombs, subject to certain enumerated exceptions.
We now revert to the question of the constitutionality of the statutes. The constitutionality of our prohibition laws has been upheld repeatedly. Jones v. State, 17 Ala.App. 444, 85 So. 839; Brogden v. State, 18 Ala.App. 56, 88 So. 366; Ricketts v. State, 18 Ala.App. 162, 90 So. 137, certiorari denied 206 Ala. 701, 90 So. 925; and in Coats v. State, 257 Ala. 406, 60 So.2d 261, 262, this Court, all the Justices concurring, stated in reference to Tit. 29, § 132, “We know of no constitutional right which such a statute infringes.”
Under the same principles by which our courts have held the prohibition law statutes constitutional, I would hold that part of the statute constitutional which was certified to us by the Court of Appeals, which is:
“ ‘It shall be unlawful * * * for any person or persons to have in their possession for the purpose of making, producing or manufacturing any stink bomb, or tear gas bomb, or any substitute or device therefor, any of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor.’ ” [96 So.2d 592]
Just as it is within the police power of the state to enact and enforce the liquor laws to preserve the health, morals or safety of the public, even more so is that power being properly exercised when a statute like the one under consideration is enacted by the legislature. The depositing of a stink or tear gas bomb is usually a sneaky act, as a consequence of which property can be destroyed and men, women and children could possibly be trampled to death if such bombs were deposited in a crowded theatre or like building.
I think I have already demonstrated that the statute does not seek “to punish one for what he thinks or believes” as was the case in Carter v. State, 243 Ala. 575, 11 So.2d 764, 766, but to punish one who possesses stink bomb ingredients for the purpose of making, producing or manufacturing a stink bomb. I do not think the Carter case is an apt authority.
1 am unable to follow the Court of Appeals in this paragraph:
“We are further of the conclusion that the quoted portion of Section 369, supra, is unconstitutional in that it uses words of no ascertainable meaning, and can include within its scope acts which are innocent of any relation to stink bombs, and sets no ascertainable standard of conduct.”
The quoted words of the statute, taken separately, and as arranged in the sentence, have an “ascertainable meaning” and are clear and unambiguous. The words do not include acts which are innocent of any relation to stink bombs because the only possession of ingredients which is unlawful is a possession for the purpose of manufacturing a stink or tear gas bomb. Referring again to the cases construing Tit. 29, §§ 131 and 132, the possession of stills, lard cans, troughs, caps, tubs, copper worms, wet meal, pipes, cans and buckets are innocent acts, but they become unlawful acts when they are possessed for the purpose of manufacturing prohibited liquors. Just so, the possession of ingredients commonly used to make stink bombs is innocent, but such possession becomes unlawful when it is “for the purpose of making, producing or manufacturing any stink bomb.” That is the standard of conduct. The possession must be for the purpose set out in the statute to be unlawful.
It follows that it is my opinion that the quoted part of Tit. 14, § 369, supra, is constitutional; and I must of necessity dissent.
LAWSON and GOODWYN, JJ., concur.