Duncan v. State

143 So. 201, 25 Ala. App. 197, 1932 Ala. App. LEXIS 162

Opinion

BRICKEN, P. J.

Appellant was tried and convicted for violating the prohibition law by having whisky in her possession. It appears from the evidence that several officers “raided” the home of appellant where she lived with her husband. At the time several other persons were present. The state’s testimony was given by two officers who went into the home upon the occasion in question, and each of these witnesses admitted on cross-examination that at no time did they see this appellant with any whisky or other prohibited liquor in her possession. They did testify that she came from the bathroom where a jug or container of whisky had been broken in the commode. The facts as testified to by these witnesses tended to create a suspicion against appellant, but fell far short of sustaining the measure of proof necessary to a conviction. The requested affirmative charge, under all the evidence, should have been given, and, for the error in refusing said charge, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded. Under this evidence the accused was entitled to her discharge. Ammons v. State, 20 Ala. App. 285, 101 So. 511, 514, and cases cited. See also Riley v. State, 24 Ala. App. 594, 139 So. 576.

Reversed and remanded.