Dixon v. State, 8 Div. 934

• Decision Date: 12 June 1958
• Docket Number: 8 Div. 934
• Citation: 269 Ala. 593,115 So.2d 269
• Parties: Lester Bemay DIXON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 269

115 So.2d 269

269 Ala. 593

Lester Bemay DIXON v. STATE of Alabama.

8 Div. 934.

Supreme Court of Alabama.

June 12, 1958.

Rehearing Denied Sept. 25, 1958.

John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the petition.

Scruggs & Scruggs, Guntersville, opposed.

MERRILL, Justice.

We granted the writ in the instant case because the cases cited in the opinion of the Court of Appeals do not appear to support the conclusion of that court.

Hudson v. State, 249 Ala. 372, 31 So.2d 774, is merely a 'trail case,' with facts dissimilar to the facts here. Moreover, that is a possession case and could not be authority for the absence of proof of the corpus delicti insofar as the distilling count is concerned.

Milam v. State, 24 Ala.App. 403, 136 So. 831, admittedly must be distinguished in order to keep it from being in conflict with the opinion of the Court of Appeals.

Tennessee Coal, Iron & R. Co. v. Martin, 33 Ala.App. 502, 36 So.2d 535, is concerned with the construction of the word 'establishment' in our Unemployment Compensation Act, Code 1940, Tit. 26, § 180 et seq. That case is not in point.

In Bolin v. State, 266 Ala. 256, 96 So.2d 582, 588, the majority opinion distinguishes that case from cases dealing with the 'making, possession and transportation, etc., of illegal liquors or beverages.'

It is obvious that the cases cited in the opinion of the Court of Appeals are not apt authority.

The correct rule in possession cases is stated in Rikard v. State, 31 Ala.App. 374, 18 So.2d 435, certiorari denied 245 Ala. 677, 18 So.2d 436:

'* * * 'We have said, and it is the law, that the mere presence at a still, without more, will not warrant a conviction, but any act of the defendant in and about a still which indicates an interest in, or that he is aiding or abetting in the possession, may be taken as sufficient upon which to base a verdict of guilt.' * * *

'It is, of course, axiomatic, in such cases, that a directed verdict is improper where the evidence raises a substantial inference against innocence. Brown v. State, 30 Ala.App. 5, 200 So. 637, certiorari denied 240 Ala. 648, 200 So. 640; Emerson v. State, 30 Ala.App. 89, 1 So.2d 604, certiorari denied 241 Ala. 141, 1 So.2d 605; 6 Alabama Digest, Criminal Law k735(2).'

Elmore v. State, 21 Ala.App. 410, 109 So. 114, states the law as to both distilling and possession in this language:

'We have held in many cases that the mere presence of a person at a still was not sufficient to overcome the presumption of innocence with attends a defendant charged with, and who is on trial for, a criminal offense. Biddle v. State, 19 Ala.App. 563, 99 So. 59; Biddle v. State, 20 Ala.App. 49, 100 So. 572. This general statement, while still adhered to, cannot be so extended as to invade the province of the jury in passing upon the guilt or innocence of a defendant, whose acts or conduct raises other presumptions tending to connect him with the...