The indictment contained two counts, and, as has been many times held by this court, each count of the indictment was properly drawn, and the indictment as a whole was not subject to the demurrers interposed thereto.
The first count charged that the defendant distilled, made, or manufactured alcoholic, spirituous, malted or mixed liquors or beverages, a part of which was alcohol, and in the second count charged that he manufactured, sold, gave away, or had in his possession, a still, apparatus, appliance, or some device or substitute therefor to be used for the purpose of manufacturing prohibited liquors or beverages, etc. The jury returned a general verdict as follows: "We, the jury, find the defendant guilty as charged in the indictment."
The evidence in this case was without dispute. The defendant offered no testimony in his behalf. In the court below, the defendant relied upon the insufficiency of the state's testimony to support the verdict of the jury and the judgment pronounced thereon, and here insists that the court committed error in refusing the affirmative charge requested in writing. In support of this insistence several decisions of this court are cited.
As to the first count of the indictment, it clearly appears there was no evidence adduced upon this trial to sustain the charge contained therein against this defendant. The testimony in support of said count was not sufficient to overcome the presumption of innocence to which the accused was entitled, and at most, so far as count 1 is concerned, the evidence was sufficient only to engender a suspicion or conjecture as to the corpus delicti of the offense charged, and of the participation in said offense by the accused; and, as stated in Guin v. State,19 Ala. App. 67, 94 So. 788, "there is no rule of evidence which permits or justifies the conviction of one accused of crime, where from the evidence his guilt is left in a state of uncertainty, or is dependent upon conjecture, probabilities, or suspicion." The rule is that, in order to overcome the presumption of innocence which attends all persons upon trial charged with a criminal offense, the evidence must *Page 247 be sufficiently strong to show, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty.
To sustain the second count in the indictment the state offered testimony that the state's witnesses found a "still cap," and, "it was made of wood and copper." There was no evidence that this "still cap" or "condenser cap," as called by one of the witnesses, was "commonly or generally used for, or that it is suitable to be used in, the manufacture of prohibited liquors and beverages," and in the absence of such proof a prima facie case, under the rule of evidence provided in section 2 of the act, was not made out. Acts 1919, p. 1086, section 2. Newt Wilson v. State, ante, p. 62, 100 So. 914.
As stated in the Wilson Case, supra, even if the proof offered had been sufficient to make out a prima facie case, as provided by said section 2 of the act, supra, the burden of proof resting upon the state would not have been shifted to defendant, nor the presumption of innocence overcome, for, as held in Segars v. State, 86 Ala. 59, 5 So. 558, "a prima facie case of guilt does not generally rebut the presumption of innocence, or shift the burden of proof. Until the state proves, in the first instance, beyond a reasonable doubt the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence."
We must sustain the position taken by appellant's counsel, and hold that the court erred in refusing the affirmative charge requested in writing by defendant.
Reversed and remanded.