Opinion
7 Div. 364.
May 16, 1939. Rehearing Granted October 3, 1939. Further Rehearing Denied November 21, 1939.
Appeal from Circuit Court, Talladega County; Lamar Field, Judge.
Ted Gibbs was convicted of violating the prohibition law, and he appeals.
Reversed and remanded on rehearing.
Certiorari denied by Supreme Court in Gibbs v. State, 238 Ala. 592, 192 So. 515.
Obe Riddle, of Talladega, and L. H. Ellis, of Columbiana, for appellant.
Constructive possession alone is not sufficient to justify a conviction. Coker v. State, 25 Ala. App. 191, 143 So. 206; Cook v. State, 1 Ala. App. 224, 55 So. 269; Allen v. State, 21 Ala. App. 23, 104 So. 867; Copeland v. State, 23 Ala. App. 91, 121 So. 445; Brown v. State, 17 Ala. App. 30, 81 So. 366; Id., 202 Ala. 700, 81 So. 892. It is not a violation of the law to be merely present or in company with another person who is in possession of whiskey. Lyles v. State, 18 Ala. App. 62, 88 So. 375; Knight v. State, 19 Ala. App. 296, 97 So. 163; Blanchard v. State, 24 Ala. App. 222, 133 So. 311; Pinnington v. State, 24 Ala. App. 227, 133 So. 311. Where whiskey is found in actual possession of one person and defendant is not shown to have known of its existence, though upon his premises, defendant is entitled to the affirmative charge. There must be evidence of a guilty scienter. Henson v. State, 25 Ala. App. 118, 141 So. 718; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. Where the evidence is not positive and clear, affirming every fact essential to guilt, or is circumstantial, this, coupled with the presumption of innocence, necessitates the denial of the affirmative charge to the State. Grimmett v. State, 26 Ala. App. 56, 152 So. 262; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Pate v. State, 19 Ala. App. 243, 96 So. 649; Brasher v. State, 21 Ala. App. 360, 108 So. 266. In this case the guilty scienter is shown only by inference and by circumstances, and the giving of the affirmative charge for the State cannot be upheld.
Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State.
The defendant offered no testimony in rebuttal of that offered by the State, which showed that defendant was the owner and operator of the premises — used not exclusively as a dwelling but as a store — on which quantities of whiskey and beer were found while defendant was present, and that persons were, at the time, present in the store drinking beer, and that beer was there kept on ice along with other bottled drinks. These facts established a prima facie presumption of guilt of defendant, and the trial court was justified in giving the affirmative charge for the State. Code 1923, § 4685; Maisel v. State, 17 Ala. App. 12, 81 So. 348; Conner v. State, 16 Ala. App. 452, 78 So. 715; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Taylor v. State, 121 Ala. 24, 25 So. 689; Parrish v. State, 139 Ala. 16, 36 So. 1012.
The defendant was tried on a complaint sworn to before the Judge of the County Court, which charged that the defendant did accept the delivery of, received, have in possession, possess, sell, offer for sale, keep for sale, or otherwise dispose of, prohibited liquors and beverages, contrary to law in Talladega County.
On a trial before the County Court the defendant was convicted, and from that judgment he appealed to the Circuit Court where he was again tried before a jury and again convicted, from which judgment of conviction is this appeal.
The evidence for the State, without contradiction, tended to prove that the defendant was in the constructive possession of eleven pints of whiskey and some ten cases of beer, all of which is prohibited liquor within dry counties. It appears from the evidence that all of this liquor and beer had the State's Revenue Stamp attached to each package. There was some evidence tending to prove that the beer and whiskey was being sold openly on the premises of the defendant and at a time when he was present.
After the testimony was all in, the court gave an extended charge to the jury, in which the court stated to the jury: "If he has got it (the prohibited liquors) for his own personal use, in a dwelling house, then by implication, he has a right to keep it there because the State of Alabama, in the opinion of the court, wouldn't do the absurd thing of saying it would take the money of anybody for whiskey or beer, for their own personal use, and then say that they couldn't go anywhere in the State with it, or require such person to drink it in a wet county, where he bought it, and go back there at any time he wanted to use it."
This was, and is, in the very teeth of the opinion of this Court and the Supreme Court in its construction of An Act of the Legislature, known as the "Alcoholic Beverage Control Act," Gen. Acts 1936-37, Ex. Sess., p. 40, and we deem it our duty to call this to attention in passing upon this appeal; although further decision on this matter is not necessary.
It is not for the courts to say what the Legislature should have done, or what was its intention, unless such intention is contained in the legislative language. The language may be explained, it cannot be detracted from or added to. The office of interpretation is not to improve the Statute, it is to expound it; and the court knows nothing of the intention of an Act, except from the words in which it is expressed, applied to the facts existing at the time. May v. Head, 210 Ala. 112, 96 So. 869; Williams v. State, 28 Ala. App. 73, 179 So. 915.
In the case of Williams v. State, supra, this whole question was considered at length by this Court, which opinion was approved by the Supreme Court on certiorari. Williams v. State, 235 Ala. 520, 179 So. 920.
It is the duty of trial judges to charge the law as it has been declared by appellate courts and to give construction to Statutes in accordance with such opinions, to the end that there may be an orderly administration of justice. It is but fair to say, however, that the instant case was tried in the circuit court before the promulgation of the opinion in the Williams case, supra; and hence, no criticism of the trial judge in his charge to the jury is intended by the foregoing observation.
However, the trial judge, at the request of the State in writing, gave to the jury the general affirmative charge, and in view of this fact this action of the court becomes the controlling factor in a determination of this appeal.
While the undisputed facts tended to prove the constructive possession of the liquor by the defendant at the time fixed by the prosecution, there was no positive testimony proving a guilty scienter on the part of this defendant as to the possession of the liquor. This Court has many times held in prosecutions of this character that a guilty scienter on the part of the defendant was necessary to a conviction. In the instant case this guilty scienter rested in inferences to be drawn by the jury from the proven facts.
Inferences of guilt from proven facts may be drawn by a jury under a proper charge of the court, but the court would not be authorized to instruct the jury as to what inferences should be drawn. That function is solely within their province. Kelly v. State, 1 Ala. App. 133, 56 So. 15; Southern R. R. Co. v. Gullatt, 158 Ala. 502, 48 So. 472; Western Union Tel. Co. v. Brazier, 10 Ala. App. 308, 65 So. 95.
Taking into consideration the presumption of innocence attending the defendant on the trial, which is an evidentiary fact, and the further fact that the guilt of defendant as to a guilty scienter rested in inferences to be drawn from facts, not necessarily importing guilt, we are of the opinion that the court committed error in giving to the jury, at the request of the State, the general affirmative charge.
For this error, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
On Rehearing.
Upon a fuller consideration of the record in this case, the former opinion is withdrawn, the above opinion is substituted, the application for rehearing is granted, and the judgment of the trial court is reversed and remanded.
Application granted.