
    (99 South. 59)
    (7 Div. 911.)
    BIDDLE v. STATE.
    (Court of Appeals of Alabama.
    Feb. 5, 1924.)
    1. Intoxicating liquors <&wkey;>l37 — Mere presence at still when whisky made no violation of law.
    It is not a violation of a law for a man to be present at a still, when whisky is being made.
    2. Intoxicating liquors c&wkey;>236(4) — Evidence held insufficient to sustain conviction.
    In a prosecution for distilling intoxicating liquors, testimony tending only to show that defendant was present at a still when whisky was being made was insufficient to sustain a conviction.
    Appeal from Circuit Court, De Kalb Coun-‘ ty; W. W. Haralson, Judge.
    Adolphus Biddle was convicted of distilling, and appeals.
    Reversed and remanded.
    Isbell & Scott, of Fort Payne, for appellant.
    The evidence was not sufficient to justify a conviction. Moon v. State, ante, p. 176, 95 South. 830; Lee v. State, 18 Ala. App. 566, 93 South. 59.
    Harwell G. Davis, Atty. Gen., for the State.
    No brief reached the Reporter.
   SAMFORD, J.

It is not a violation of the law for a man to be present at a still when whisky is being made. This was all the testimony for the state tended to show. If a defendant is present at a still located oñ his own premises or premises under his control, a different question would be presented. The "affirmative charge should have been given for the defendant as requested. Moon v. State, ante, p. 176, 95 South. 830; Farmer v. State, ante, p. 560, 99 South. 59.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.  