Opinion
4 Div. 558.
December 17, 1929.
Appeal from Circuit Court, Covington County; E. S. Thigpen, Judge.
Jasper Huckabaa was convicted of violating the prohibition laws, and he appeals. Reversed and rendered.
A. Whaley, of Andalusia, for appellant.
The testimony shows defendant was not present on the occasion of finding the liquor; no incriminating circumstances are shown involving defendant, and no knowledge, notice, or agency on his part. He should have had the affirmative charge. Hutcheson v. State, 21 Ala. App. 174, 106 So. 206; Ammons v. State, 20 Ala. App. 283, 101 So. 511.
Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.
The evidence discloses that the liquor was found in defendant's dining room, where he lived, and was a circumstance to be considered by the court, trying the case without a jury.
The conviction in this case was had before the court sitting as a jury, upon the testimony of two deputy sheriffs, who went into defendant's home in his absence, without warrant, and searched the house. They found in a receptable in the dining table and under one of the leaves several bottles containing whisky. The defendant's wife was present, but the defendant was not present, and there is no evidence connecting the defendant with the whisky. There is no guilty scienter shown, and the defendant should have been discharged. Tuggle v. State, 22 Ala. App. 89, 112 So. 540; Ammons v. State, 20 Ala. App. 283, 101 So. 511; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. The case of Strickland v. State, 20 Ala. App. 600, 104 So. 351, is not in conflict with the foregoing. In the Strickland Case there were other facts and circumstances tending to prove a guilty knowledge, while in the instant case there is none. There must be a guilty scienter before a defendant can be convicted of crime, and this must be established by the evidence beyond a reasonable doubt.
The evidence will not likely be changed on another trial, so that it would be useless to remand the cause.
A judgment will here be rendered reversing the judgment and discharging the defendant.
Reversed and rendered.