Mulligan v. State

• Decision Date: 30 June 1916
• Docket Number: 8 Div. 419
• Parties: MULLIGAN v. STATE.
• Court: Alabama Court of Appeals

72 So. 761

15 Ala.App. 204

MULLIGAN v. STATE.

8 Div. 419

Court of Appeals of Alabama

June 30, 1916

Rehearing Denied Aug. 7, 1916

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

John W Mulligan was convicted of violating the prohibition law, and appeals. Affirmed in part, and in part reversed and remanded.

Eyster & Eyster, of New Decatur, for appellant.

William L. Martin, Atty. Gen., and Perry W. Turner, Asst. Atty. Gen for the State.

BROWN J.

The trial was by the court without the intervention of a jury and the evidence offered by the state showed that on about the 8th of April, 1915, the sheriff made a raid on the Southern Hotel in the city of Decatur, and found some liquors concealed under a trapdoor, consisting of 2 1/2 pint bottles of whisky and some in a quart bottle, and 23 bottles of beer, all on ice.

The statute makes the fact of keeping prohibited liquors "in any building not used exclusively for a dwelling" prima facie evidence "that they are kept for sale or with intent to sell" the same "contrary to law." Wynn v. State, 11 Ala.App. 182, 65 So. 687.

The evidence of the state further showed that the defendant and another were in the office of the hotel at the time the raid was made, and the witness Forman testified:

"The door between the first and second rooms was not locked. The door leaving the second room [leading to where the whisky was found] was locked. I asked him [defendant] to unlock the door. He said he didn't have the key. I say, 'If you don't get the key, I'll have to go through the door some other way,' and the clerk and him together--I don't say which one--got the bunch of keys and kept trying keys, and after while the door came open."

The state offered other evidence tending to show that the defendant opened the locked door at the request of the sheriff and tending to show that the defendant had possession or control of the hotel.

The defendant offered evidence tending to show that he was not in possession of the hotel, and had no control thereof; that he roomed on the second floor, and had no access to the floor where the liquors were found except to the office; that he had no knowledge that the liquors were concealed in the house; that one Jones rented the furniture from the bank; and that McDonough rented the building from Austin.

This statement of the evidence and its tendencies is sufficient to show that it was in conflict on all the material issues in the case; and in such cases, when the trial is by the court without a jury and the testimony is given ore tenus, the rule is that the judgment will not be disturbed on appeal unless the judgment is plainly contrary to the weight of the evidence (Laster v. Blackwell, 133 Ala....