The facts in this case can be summarized by an answer given by a Federal Alcohol Tax Unit investigator on cross examination, "I only saw Mr. Dixon carrying a 100 pound sack of sugar and a five gallon can."
Dixon was, on March 23, 1956, indicted by the Grand Jury of Marshall County of (1) distilling, and (2) possessing a still. He was tried on June 5, 1956. The jury rendered a verdict of guilty. The court, adjudging him guilty, sentenced him to the penitentiary for two years.
The tendency of the evidence for the State, which was adduced by two Federal Alcohol Tax Unit investigators, was that on January 25, 1956, the two investigators and the high sheriff and his deputy proceeded along a country road in the neighborhood of Mt. Pleasant in the Bucksnort Beat (Beat 19) of Marshall County. They stopped the car in the vicinity of the top of a high bluff (also variously described as a hill or mountain), and having come into the woods near the edge of the bluff at a distance of approximately 75 yards from the highway, discovered a "stash" of several five-gallon jugs and metal cans, and three 100 pound sacks of sugar, together with some fuel. The investigators proceeded down the mountainside about 150 yards from this stash, and upon hearing voices down below in a little ravine, stopped and withdrew from the path a distance of some 15 yards. They then noticed two men coming up the trail. It was beginning to get dark and both witnesses testified that they were unable to identify the men who came up the trail. A short time later, they noticed two men coming back down the trail, and, closing in, they apprehended the
Some 60 yards below the point of capture, out of sight, they discovered a still at the end of the path. Around the still were some 22 barrels of mash, the still was in operation, and a man named James Martin was arrested there.
There was no evidence as to the ownership of the land on which the still or the stash was located. A later visit to the stash showed two of the sacks of sugar gone and two five-gallon jugs of whiskey added.
The contention of the State was that the evidence as to the stage of manufacture and evidence of skimming off the contents of the 22 barrels of mash made Dixon's conduct a part of an integrated operation. The sugar inferentially was to be used to "recharge" the barrels. With this theory there would be no difficulty had there been any evidence at all that Dixon and the other man arrested coming down the path were also the men who went up the path. Without this evidence, however, we have only the outward trappings of a man on his way to what the jury might well find would, in the probable course of events, have been the commission of a statutory crime, viz., distilling, but also a crime which he was only about to commit, and which, under the evidence here, was purely putative.
Statutory crimes, unless employing such expressions as "willfully," "intentionally," or "knowingly," do not ordinarily require proof of mens rea. Thus, a violation of the speed limit occurs when the rate prescribed is passed, regardless of the state of mind of the operator. Likewise, in statutory rape, the belief that the female is of the age of consent is immaterial. Conversely, since there is, in the instant charged offense, no element of intent, there must be some act of commission. As in death bed salvation, the person about to commit a statutory crime has until the last minute to change his mind. Accordingly, as to the distilling count, there was no sufficient proof of the corpus delicti. See Hudson v. State, 249 Ala. 372, 31 So.2d 774.
As to the possession of a still, there was sufficient evidence to indicate that Dixon and his companion had obtained the sugar from the stash located on the plateau above the still. We cannot, however, say that the stash was an integral part of the manufacturing establishment at the foot of the hill as, on the contrary, was a dam in a branch to divert water to a pipe running to a still in Milam v. State, 24 Ala.App. 403, 136 So. 831. Thus, in Tennessee, Coal, Iron & R. Co. v. Martin, 33 Ala.App. 502, 36 So.2d 535, this court held that the various components of an industrial complex comprising U. S. Steel Company's operations in Jefferson County did not constitute a single establishment. No more do we think that a hiding place, warehouse, barn, or other cache located out of sight and at some considerable distance from a still (i. e., not a part of the "still yard") is in anywise to be considered a part of a still when no manufacturing operation or preparation of raw materials actually takes place at that point.
The mere possession of an ingredient, a raw material, cannot alone, unless expressly so stated by statute, give rise to illegality. No more can its legal possession give rise to an inference of having it for a future illegal purpose. This distinction was clearly brought out in the recent stink bomb ingredient case, Bolin v. State, Ala.App., 96 So.2d 592, on a certified question from this court, Ala., 96 So.2d 582.
The affirmative charge having been requested in writing by Dixon, it was due to
Reversed and remanded.
On original consideration we saw no need to review the remainder of the record.
The trial judge refused the following requested written charge:
In Layton v. State, 22 Ala.App. 523, 117 So. 610, this court, per Rice, J., said:
See also Bowlin v. State, 24 Ala.App. 192, 132 So. 600, and Shepard v. State, 20 Ala.App. 627, 104 So. 674.
The pecuniary interest of a witness in the outcome is a permissible enquiry, since such an interest can go to the witness' credit or the weight which may be attached by the jury to his testimony on the facta probanda or matters preliminary thereto or explanatory thereof. Beverly v. State, 27 Ala.App. 374, 173 So. 397, Mc-Elroy, Law of Evid. in Ala., § 150.
Evidence of a reward held out may be admitted under proper conditions. Anderson v. State, Ala.App., 103 So.2d 796, Turney v. State, 18 Ala.App. 539, 93 So. 325.
Thus, in Myers v. State, 97 Ga. 76, 25 S.E. 252, 261, we find:
Code 1940, T. 29, § 102 (as amended by Act. No. 699, approved September 17, 1953), provides:
Code 1940, T. 29, § 134, contains a like fee or reward with respect to convictions for possessing a still.
We have looked at the oral charge in the Layton case, supra, and find the reference to the possibility of interest affecting a witness' credit was of the same tenor and effect as the verbiage used by the trial judge in his oral charge in the instant case.
Accordingly, on the authority of Layton v. State, supra, and Bowlin v. State, supra, the judgment below is reversed and the cause remanded for new trial.
Reversed and remanded.
Code 1940, T. 15, § 306, reads in part:
For prior law, see Bohannon v. State, 73 Ala. 47.
The State urges us to affirm on authority of Wells v. State, 19 Ala.App. 403, 97 So. 681; Brown v. State, 22 Ala.App. 648, 119 So. 512, and Harmon v. State, 20 Ala. App. 254, 101 So. 353.
In Wells refused Charge T read [19 Ala. App. 403,97 So. 682]:
That case was reversed under an opinion of Bricken, P. J., delivered on rehearing so that with the ratio decidendi being set out in Judge Bricken's opinion, the comment of Judge Samford on original deliverance is left stranded and can only be dictum. However, in Brown v. State, supra, Judge Samford used the same reason alluded to by him in Wells. In Brown refused Charge 13 was as follows:
Of which the court said:
The "singling out"—Wells, supra— (which, of course, is virtually identical with "giving undue prominence to") seems to lie in the mention of named witnesses rather than in framing the instruction so as to embrace the testimony of all witnesses within the ambit of the reward statutes.
This vice does not apply here since Dixon's refused charge covers precisely the offerees named by the Legislature, i. e., persons or officers. See Mosely v. Kennedy, 245 Ala. 448,17 So.2d 536.
Harmon v. State, supra [20 Ala.App. 254, 101 So. 354], presented refused Charge L which read:
Thus, in Harmon, we have three reasons to justify the trial judge's refusal of Charge L:
(1) it was covered by the oral charge;
(2) it pretermitted the steps to secure the statutory reward; and
(3) it was abstract under the evidence of that case.
Of these three only the second would have influence here.
The Harmon case was in 1924, Layton in 1928, and Bowlin in 1931, a span of almost seven years. This seems too short a time to ascribe any primacy to the Harmon opinion over Layton and Bowlin under the principle of, "The older the case, the better the law."
In Layton and Bowlin, there is no description of the pecuniary interest being inchoate or contingent at the time of testimony because the reward is available (as are most rewards) to the person furnishing information leading to the arrest and conviction of the culprit.
The Harmon opinion attaches significance to the fact that Charge L did not point out that the trial judge is the final awarding authority, T. 29, § 102, as amended. Our understanding is that in our circuit courts where the evidence is clear as to who is entitled to the reward—as it is here—the trial judge's certificate issues as a matter of course, and is recorded not as a separate proceeding but on the docket sheet of the case in which the testimony was given.
In Thomas v. State, 22 Ala.App. 516, 117 So. 498, it was reversible error to sustain the State's objection to a question going into the pecuniary interest of a State witness in the proceeds of an insurance policy on the life of the deceased—proceeds which, if the defendant had been convicted of murder, might have gone, at least, in part, to the witness. See also Weaver v. State, 17 Ala.App. 506, 86 So. 179, and Lock v. State, 21 Ala.App. 81, 105 So. 431.
Smith v. State, 30 Ala.App. 346, 5 So.2d 648, dealt with a question put a deputy sheriff as to how much the sheriff would get if Smith were convicted. The deputy was assumedly on a salary basis, hence the court held his interest too remote, Mosely v. Kennedy, supra.
Here the State's two principal witnesses who, under the undisputed evidence, would be entitled to the reward were neither the sheriff nor his deputies. Thomas, Weaver, Lock and Smith are all cases touching proper cross-examination.
Moreover, the earlier strictness relating to competency of witnesses because of pecuniary interest
In Crawford v. State, 30 Ala.App. 104, 1 So.2d 314, a prosecution for selling a choking mule [now Code 1940, T. 3, § 18], it was held reversible error to refuse the following charge:
We have compared the oral charge in the record
Application overruled Oct. 20, 1959
Affirmed on authority of Dixon v. State, Ala., 8 Div. 983, 115 So.2d 270.
The oral charge in Crawford reads: