
    175 So. 333
    WHITT v. STATE.
    7 Div. 275.
    Court of Appeals of Alabama.
    June 15, 1937.
    E. G. Pilcher and Culli, Culli & Swann; all of Gadsden, for appellant.
    A. A. Carmichael, Atty. Gen., for the State.
   SAMFORD, Judge.

The indictment in this case was in two counts. Count 1 charged that the defendant did distill, make, or manufacture alcoholic, etc., beverages. Count 2 charged that the defendant did manufacture, sell, give away, or have in his possession, a still, etc.

The verdict of the jury specifically found the defendant guilty under the first count of' the indictment, with a recommendation of mercy. This verdict had the effect of acquitting the defendant under the second count of the indictment. 6 Alabama Digest, Criminal Law, ®=> 878(3).

After conviction, the defendant moved the court to set aside the verdict and to grant a new trial on the ground that the verdict was contrary to the ■ evidence. This motion was overruled, and the action of the court in overruling this mot'ion is here assigned as error.

There was evidence in the case which might have justified the jury in finding that the defendant was in possession of a still, or apparatus suitable for the manufacture of whisky, but, as to this charge the jury acquitted the defendant. We have' read this record carefully, and we fail to find any evidence that would sustain a verdict of guilty under the first count of the indictment. For this reason the motion for a new trial should have been granted; and for the error in refusing to grant this motion, the judgment is reversed and the cause is remanded.

Reversed and remanded.  