Pinnington v. State

Alabama Court of Appeals

Pinnington v. State

133 So. 311, 24 Ala. App. 227, 1931 Ala. App. LEXIS 226

CourtAlabama Court of Appeals

DecidedMarch 17, 1931

Docket7 Div. 740.

StatusPublished

This text of 133 So. 311 (Pinnington v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pinnington v. State, 133 So. 311, 24 Ala. App. 227, 1931 Ala. App. LEXIS 226 (Ala. Ct. App. 1931).

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Opinion

State's witnesses, who were deputy sheriffs, saw this defendant and another boy behind some bushes in the woods and about 75 yards away drink something from a vessel of some kind. The two boys then came up to where the deputies were and one of the deputies swore he smelled whisky on defendant; the other said he did not. One of the boys had some whisky in his possession, but both of the deputies said defendant was searched and had none. The only grounds for a conviction of this defendant then was that he possessed whisky when he had the vessel in his hand taking a drink of something and the testimony of one witness that when defendant was arrested witness smelled whisky on him. There was no evidence that whatever the officer saw defendant drink 75 yards away was whisky, and, while the smell of whisky on defendant's breath may be some evidence that he had taken a drink of whisky at some time in the recent past, a conviction for unlawfully possessing whisky must be based upon evidence of time and place. Moreover, the state's witness did not qualify as to a knowledge of the smell of whisky, and for that reason the testimony that witnesses smelled whisky on defendant should have been excluded.

The motion of defendant to discharge the defendant should have been granted.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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State's witnesses, who were deputy sheriffs, saw this defendant and another boy behind some bushes in the woods and about 75 yards away drink something from a vessel of some kind. The two boys then came up to where the deputies were and one of the deputies swore he smelled whisky on defendant; the other said he did not. One of the boys had some whisky in his possession, but both of the deputies said defendant was searched and had none. The only grounds for a conviction of this defendant then was that he possessed whisky when he had the vessel in his hand taking a drink of something and the testimony of one witness that when defendant was arrested witness smelled whisky on him. There was no evidence that whatever the officer saw defendant drink 75 yards away was whisky, and, while the smell of whisky on defendant's breath may be some evidence that he had taken a drink of whisky at some time in the recent past, a conviction for unlawfully possessing whisky must be based upon evidence of time and place. Moreover, the state's witness did not qualify as to a knowledge of the smell of whisky, and for that reason the testimony that witnesses smelled whisky on defendant should have been excluded.

The motion of defendant to discharge the defendant should have been granted.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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Bluebook (online)

133 So. 311, 24 Ala. App. 227, 1931 Ala. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinnington-v-state-alactapp-1931.