Oldacre v. State

• Decision Date: 08 May 1917
• Docket Number: 8 Div. 476
• Parties: OLDACRE v. STATE.
• Court: Alabama Court of Appeals

75 So. 827

16 Ala.App. 151

OLDACRE v. STATE.

8 Div. 476

Court of Appeals of Alabama

May 8, 1917

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

Boss Oldacre was convicted of violating the prohibition law, and he appeals. Reversed and remanded.

The second count of the complaint charges that defendant, since October 1, 1915, and before the making of this affidavit, in this county, had in his possession at one time more than two quarts of spirituous liquor, against the peace and dignity of the state of Alabama.

The following are the charges refused to defendant:

(1) Unless you are convinced beyond all reasonable doubt that defendant had the liquor in his possession for sale, or for some other unlawful purpose, then your verdict should be for defendant.

(5) A man may own and have possession of a gallon, or less of whisky in one bottle, provided he has it for a legitimate purpose, and for his own use, and not to use, keep, or dispose of it unlawfully.

(6) I charge you the law does not prohibit a man from having possession of as much as one gallon of whisky in one bottle provided he has it for his own consumption, and solely for legitimate purposes.

The state examined two witnesses, both of whom testified that they made a search of defendant's house and found no whisky, and that about the time they completed the search they saw a boy named Box, who was living with defendant, about 35 yards from the house going towards the back of the garden, holding something in his hand; that they called him back, and that he had a gallon glass jug or bottle, about two-thirds full of corn whisky. Witness said they found no whisky in the house, or in the possession of defendant, and the only whisky found was the whisky, offered in evidence, which the boy had at the time, and both witnesses admitted that defendant and the boy, Box, then and there stated that defendant did not know that the whisky was on the premises; and that the whisky had been hid behind the smokehouse the previous evening by one Fred McDaniel, and this boy was the only one who saw or knew that the whisky was there; and that McDaniel told him, at the time he hid it, to take care of it for him; and that while the officers were searching the house, and without the knowledge of defendant, and without defendant knowing the whisky was there, the boy took the whisky from its hiding place, and attempted to carry it back of the garden and hide it there.

Sample & Kilpatrick, of Cullman, for appellant.

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