The second count in the indictment followed the language of the statute, Acts 1919, p. 1086, § 1, and therefore was not subject to the demurrer interposed.
The evidence to sustain a conviction was obtained, while the officers were making a search of defendant's premises without a search warrant, and for this reason the evidence of the officers was objected to, and, objection being overruled, exception was reserved. We have recently held that this was not error. Banks v. State (Ala.App.) 93 So. 293.1 However, this does not seem to be the rule in the federal court. Gouled v. U.S., 255 U.S. 298, 41 Sup. Ct. 261, 65 L.Ed. 647.
The witness Lane, testifying in behalf of the state, said that —
"He found a lard can that held about twenty gallons and two pieces of pipe in his (defendant's) dining room and a barrel of beer out in his crib; that it was a bucket of some kind for a cap; the can he found had been used around the fire, 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."
Counsel for the state was then, over the timely objection and exception of defendant, permitted to ask the witness this question, "Was it suitable for making whisky?" to which the witness answered, "It was." The court having sustained a demurrer to the first count of the indictment, it is clear that the inquiry could not relate to the barrel of beer found in the crib, for the reason that under the second count the prosecution related alone to an apparatus, which under section 2 of Acts 1919, p. 1086, approved september 30, 1919, must be commonly or generally used for or that is suitable to be used (italics ours) in the manufacture of prohibited liquors. Whether the articles referred to constituted such apparatus, the possession of which is condemned by the statute, is a question for the jury, and whether they were "suitable to be used" for that purpose was a material inquiry and directly involved in the trial of the cause; it being a material ingredient of the offense denounced by the statute.
A witness cannot substitute his opinion or conclusion for that of the jury. Harris v. State, 31 Ala. 362; Smith v. State,55 Ala. 1; Holmes v. State, 100 Ala. 80, 14 So. 864; Rowlan v. State, 14 Ala. App. 17, 70 So. 953. In the last-cited case Judge Brown has undertaken to point out the difference between a mere opinion and the statement of a collective fact, and has as nearly done so as can well be done.
On a prosecution for using abusive language in the presence or hearing of females, a witness may give his opinion as to whether the females were close enough to have heard the language spoken, as being the best method of conveying to the jury the loudness of the voice at time the words were spoken, Rollings v. State, 136 Ala. 126, 34 So. 349; but it would never be held that the witness could give his opinion as to whether the words spoken were abusive. A witness might be permitted to testify that all of the shots fired were from the same pistol, where he is shown to have seen the flashes, Kroell's Case, 139 Ala. 1, 36 So. 1025; but he would not be permitted to say the shots were first fired with malice. A witness may state whether two tracks are of the same or different kinds, Littleton's Case. 128 Ala. 31, 29 So. 390, but would not be permitted to say that the person making the tracks was then in such position as to constitute a trespass. A witness may be permitted to say he saw something in defendant's pocket that looked like a pistol, Mayberry's Case,107 Ala. 64, 18 So. 219, but not that the pistol was concealed from ordinary observation. And so instances might be multiplied going to show that the courts always recognize the rule that a witness may not substitute his opinion for the conclusion to be drawn by the jury, and we are not convinced that the importance of enforcing judgments of conviction in prohibition cases renders a change of the rules of evidence necessary or desirable, or that there should be one rule in prohibition cases and another rule in other criminal cases. Clark v. State, ante., p. 217, 90 So. 16.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Affirmed under mandate of Supreme Court, Ex parte State ex rel. Atty. Gen., in re Griggs, 207 Al. 453, 93 So. 501.
1 Ante, p. 376.