Bivens v. State, 4 Div. 246

• Decision Date: 24 November 1936
• Docket Number: 4 Div. 246
• Citation: 27 Ala.App. 304,171 So. 755
• Parties: BIVENS v. STATE.
• Court: Alabama Court of Appeals

171 So. 755

27 Ala.App. 304

BIVENS v. STATE.

4 Div. 246

Court of Appeals of Alabama

November 24, 1936

Rehearing Denied Dec. 15, 1936

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Frank Bivens was convicted of unlawfully possessing prohibited liquor, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Bivens v. State, 171 So 756.

Yarbrough & Beck, of Enterprise, for appellant.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The prosecution in this case was upon an indictment which charged this appellant (defendant below) with the offense of violating the prohibition laws of the State by having possession of prohibited liquors. The indictment was in the usual form and charged, in the alternative, that he "did sell, possess, or have in his possession illegally, prohibited liquors, or beverages contrary to law."

As stated by the trial judge in the oral charge, there was no insistence by the State that the defendant "sold" prohibited liquor, therefore the inquiry was confined to the averment in the indictment as to "possession." In this connection the court stated to the jury: "You may omit any consideration of whether he sold any, because there is no evidence here that he did sell any. The only consideration you make here is as to whether or not he possessed, had in his possession a liquid, or beverages containing alcohol to a greater extent than one-half of one per cent."

The evidence for the State consisted of the testimony of two witnesses who stated, in substance, that they entered a house where this man lived, and found a pint bottle of whisky in a sack of peanuts in one of the back rooms of the house. The bottle had never been opened. The defendant was not present at the time, nor was there any one else there. They afterwards saw and arrested appellant, who was at that time some three-fourths of a mile from the house in question. Without dispute the evidence disclosed that two other men lived in the same house. The defendant strenuously denied all knowledge of, or connection with, the pint bottle of whisky.

On this appeal there are several insistences of error as to the rulings of the court upon the admission of the evidence. The principal insistence, however, is to the action of the trial court in refusing to defendant the affirmative charge.

There are innumerable opinions of the appellate courts of this State, published in the reports, where the facts of this case are almost, if not, actually identical with the facts contained in these published decisions. In each instance it has been held that the mere finding of prohibited liquors in or upon the premises of a defendant, who was not present, and no evidence whatever to connect him therewith, is insufficient upon which to predicate a verdict of guilty; and that such evidence will not sustain a judgment of conviction.

We again so hold here. The defendant in this case under the undisputed facts was entitled to his discharge, and the court erred in refusing the affirmative charge requested in writing.

In support of the foregoing we need cite only the case of Perkins v. State, 24 Ala.App. 231, 133 So. 307, and cases therein cited; among which is the case of Talbot v State, 23...