Opinion
7 Div. 269.
June 23, 1953. Rehearing Denied August 11, 1953.
Appeal from the the County Court, DeKalb County, I.M. Presley, J.
W.M. Beck, Fort Payne, for appellant.
Mere finding of prohibited liquors on defendant's premises, in his absence, without evidence to connect him therewith, is insufficient for a conviction of unlawfully possessing liquors. Bivens v. State, 27 Ala. 304, 171 So. 755; Id., 233 Ala. 304, 171 So. 756. Where defendant's premises are occupied by several people, finding of liquor without evidence connecting him with it is insufficient to convict him. Bush v. State, 27 Ala. App. 482, 175 So. 315; Id., 234 Ala. 381, 175 So. 316. The State must prove guilty scienter. Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Weaver v. State, 24 Ala. App. 694, 131 So. 927; Gilbert v. State, 25 Ala. App. 169, 142 So. 682. A motion to exclude is proper when the State has not made out a prima facie case. Robinson v. State, 222 Ala. 541, 133 So. 578; Wallace v. State, 16 Ala. App. 85, 75 So. 633.
Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
Charge of unlawfully possessing prohibited liquor may be established by circumstantial evidence as well as by direct testimony. Wilson v. State, 27 Ala. App. 38, 166 So. 715; Id., 232 Ala. 50, 166 So. 716. The fact that liquor was found in defendant's home, which was inhabited by none other than his wife and children, was sufficient to show constructive possession and knowledge on the part of defendant. Guilty knowledge may be proved by circumstantial evidence. Thompson v. State, 32 Ala. App. 402, 27 So.2d 55; Id., 248 Ala. 270, 27 So.2d 59.
In the court below the defendant, Rube Burt, was convicted of the offense of possessing whiskey in a dry county. The cause was tried by the court without a jury.
The only question of prime concern is a review of the action of the trial judge in denying the appellant's motion to exclude the evidence. Robinson v. State, 222 Ala. 541, 133 So. 578.
Armed with a search warrant the officers went to the home of the defendant and "found in his kitchen a drinking glass of whiskey and in one of the bed rooms a pint in a coat pocket and in another bed room under the bed a pint, under the bed. Then in the back room behind the kitchen we found a gallon and a half gallon in gallon jugs and then in the other bed room we found fifteen or venty empty jugs that had had whiskey in them."
The coat referred to above was "a man's dress coat."
The appellant's family consisted of his wife and some minor children. The accused was not at home at the time of the search.
Judge Samford, writing for this court had this to say:
"There was other evidence tending to prove that the defendant had knowledge of the fact that the whisky was on his premises, and there were inferences from the testimony indicating that the defendant was the owner. The law does not contemplate the conviction of any persons for the possession of whisky, when such possession is unknown to the accused. But, a constructive possession with full knowledge on the part of the defendant, and after such knowledge he permits the prohibited liquors to remain on his premises, is a violation of the law, and the defendant may be convicted if such are the facts." Franks v. State, 28 Ala. App. 132, 179 So. 649.
It is quite difficult to find helpful authorities on the question of instant concern because of dissimilar factual foundations.
In many cases where whiskey was found on the premises of the accused the appellate courts have concluded that the evidence did not afford sufficient connective potency to sustain the judgments of conviction. This is illustrated by the following cases: Ammons v. State, 20 Ala. App. 283, 101 So. 511; Guilford v. State, 20 Ala. App. 625, 104 So. 678; Thomas v. State, 20 Ala. App. 640, 104 So. 687; Allen v. State, 21 Ala. App. 23, 104 So. 867; Phillips v. State, 22 Ala. App. 97, 112 So. 810; Clayton v. State, 22 Ala. App. 276, 114 So. 787; Talbot v. State, 23 Ala. App. 559, 129 So. 323; Eldridge v. State, 24 Ala. App. 395, 135 So. 646; Coker v. State, 25 Ala. App. 191, 143 So. 206; Buckner v. State, 25 Ala. App. 361, 146 So. 624; Alford v. State, 26 Ala. App. 188, 155 So. 388; Pruitt v. State, 27 Ala. App. 137, 166 So. 730; Bivens v. State, 27 Ala. App. 304, 171 So. 755; Bush v. State, 27 Ala. App. 482, 175 So. 315; Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Riddlespur v. State, 34 Ala. App. 431, 40 So.2d 640; Garrett v. State, 36 Ala. App. 417, 57 So.2d 130.
In the following cases we held that the evidence was sufficient to sustain the judgments of conviction: Bridgeforth v. State, 16 Ala. App. 239, 77 So. 77; Gilbert v. State, 25 Ala. App. 169, 142 So. 682; Leach v. State, 24 Ala. App. 423, 136 So. 493; Prouty v. State, 24 Ala. App. 454, 136 So. 492; Kirtland v. State, 27 Ala. App. 376, 172 So. 680; Emerson v. State, 30 Ala. App. 89, 1 So.2d 604; Mickle v. State, 31 Ala. App. 141, 13 So.2d 100; Lawler v. State, 31 Ala. App. 458, 18 So.2d 469; Fletcher v. State, 33 Ala. App. 423, 34 So.2d 860; Franks v. State, supra; Thomas v. State, ante, p. 118, 66 So.2d 189.
We have gone to considerable care to seek out and cite a rather large number of cases under the two classifications. A careful study of these opinions will lead to the conclusion that there is a line of factual demarcation between the two groups. Some of the cases make this more apparent and outstanding than others.
The judgment below clearly finds support from the authorities cited in the latter group herein above.
The judgment below is ordered affirmed.
Affirmed.