Jacobs v. State

123 So. 285, 23 Ala. App. 234, 1929 Ala. App. LEXIS 184

Opinion

RICE, J.

Summarized, the testimony in this case does no more than show that within the boundaries of the unfenced and uninclosed yard of the appellant there was found, at a distance of some 15 or 20 feet from his house, in an old “sink hole” or “flower pit,” a five-gallon jug, containing something more than a gallon of whisky. The “public road” ran near by — another freely traveled road ran still nearer by. According to the uncontradicted testimony, “there was a road that runs by the side of the house, the north end of it, that winds down through a field and leads off from the main public road. You can drive you might say, right up to the front door of the house.”

Upon the above testimony, we hold that it was reversible error to overrule appellant’s motion to set aside the verdict of the jury and grant him a new trial. Really, it was error to refuse to give the duly requested general affirmative charge in appellant’s favor. Allen v. State, 21 Ala. App. 23, 104 So. 867; Guilford v. State, 20 Ala. App. 625, 104 So. 678; Clayton v. State, 22 Ala. App. 276, 114 So. 787.

The judgment is reversed, and the cause remanded.

Reversed and remanded.