Opinion
4 Div. 591.
February 11, 1930.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Alto Lee was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
The indictment is as follows:
"The Grand Jury of said County charge that before the finding of this Indictment, that Alto Lee whose name to the Grand Jury is otherwise unknown, did buy, sell, or have in possession illegally, give, barter, exchange, received, deliver, carry, or ship prohibited liquors, contrary to law.
"2. The Grand Jury of said County further charge that before the finding of this Indictment, Alto Lee, whose name to the Grand Jury is otherwise unknown, did buy, sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship prohibited liquors, or beverages contrary to law, against the peace and dignity of the State of Alabama."
Grounds of the demurrer to the indictment are as follows:
"1. Because said indictment fails to state an offense under the laws of Alabama.
"2. Because said indictment charges that defendant did buy prohibited liquors and beverages contrary to law."
The solicitor was permitted to nolle prosequi the charge embraced in the indictment "that the defendant did buy prohibited liquors contrary to law." Defendant excepted upon the ground that same was an amendment of the indictment, to which defendant did not consent.
E. C. Orme, of Troy, for appellant.
Demurrer to the indictment should have been sustained; to buy liquors is not an offense. Griffin v. State, 22 Ala. App. 369, 115 So. 769; Code 1923, §§ 4544, 4546. An indictment may not be amended without the consent of the defendant. The nol. pros. here was an amendment. Code 1923, §§ 4550, 4551. The statement of the solicitor in argument to the jury was a statement of a fact not in evidence, and objection thereto should have been sustained. Cross v. State, 68 Ala. 476.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
By the holding of the Supreme Court of Alabama in Re Jinright v. State (Ala. Sup.) 125 So. 606, the demurrer to the indictment and other objections thereto interposed by defendant, can avail him nothing. Under said decision, which perforce we must follow (section 7318, Code 1923), the demurrer to the indictment was properly overruled, and the amendment to the indictment, over objection and exception of defendant, likewise was without error.
Upon the theory of the insufficiency of the evidence, and a consequent failure of the state to meet the burden of proof by showing the guilt of the accused beyond a reasonable doubt, the affirmative charge was requested and refused. On this question this court sitting en banc has read the entire evidence in this case, and has reached the conclusion that the affirmative charge should have been given. There was no evidence to connect the defendant with the possession of the prohibited liquor found in his field across the public road and some 75 yards from defendant's house. At most, the evidence adduced could be said to raise a mere suspicion only, and the appellate courts have many times held that convictions for crime cannot be rested upon suspicion, surmise, or conjecture. Upon the trial the evidence disclosed by numerous witnesses, without dispute, that the general character of the accused was good; and previous good character of an accused, in all criminal prosecutions, either for a felony or misdemeanor, is legal evidence for him, and when considered with all the other evidence, may generate a reasonable doubt of his guilt entitling him to an acquittal. Savage v. State, ante, p. 372, 125 So. 790, and cases cited.
During the argument of the solicitor to the jury he made the statement, "the defendant has sold liquor before." This record contains no semblance of testimony authorizing or warranting such statement of fact. The statement being unsupported by any evidence, also pertinent to the issues involved upon the trial, and its natural tendency was to influence the finding of the jury, also highly prejudicial; the trial court should promptly have sustained the insistent and timely objection of defendant, and erred to a reversal in overruling same. The exceptions reserved were well taken.
Reversed and remanded.