Walls v. State

• Decision Date: 25 June 1940
• Docket Number: 8 Div. 940.
• Parties: WALLS v. STATE.
• Court: Alabama Court of Appeals

198 So. 151

29 Ala.App. 466

WALLS v. STATE.

8 Div. 940.

Court of Appeals of Alabama

June 25, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Madison County; Schuyler H. Richardson Judge.

Sally alias Sallie, Walls was convicted of violating the prohibition law, and she appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Walls v. State, 8 Div. 70, 198 So. 153.

E. D Johnston, of Huntsville, for appellant.

Thos S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty. Gen., for the State.

SIMPSON Judge.

This is an appeal from a judgment of conviction in the Circuit Court of Madison County--denominated a "wet" county by the terms of the Alabama Beverage Control Act, Gen.Acts, Extra Session, 1936-37, p. 40, No. 66. It was there charged that defendant (appellant here) "did sell or have in possession illegally, give, barter, exchange, receive, deliver, carry, or ship Prohibited Liquors, contrary to law against the peace and dignity of the State of Alabama."

This court, sitting en banc, has read the record of the evidence and carefully considered the same, and is of the opinion that the presumption of innocence which should attend the defendant throughout the trial of the cause was not rebutted or overcome by that measure of proof which the law dictates. We have been unable to discover any substantial evidence tending to connect the accused with the offense charged. The liquor--a pint of whiskey and about a half pint of gin--in bottles duly labeled with State stamps, etc., upon which the prosecution was rested, was found in defendant's kitchen, (claimed by her witnesses and not substantially contradicted by other evidence to be part of her living quarters), and at a time when she was not present and, in fact, from which she had been absent since the previous day. Her husband asserted ownership of the liquor, contending that he had purchased it from the State liquor store in Huntsville. There was no evidence, and no circumstances from which it could be inferred, that liquor was being sold at the time and place in question.

Constructive possession alone is not sufficient to justify a conviction of the offense charged. There must in addition be evidence from which the jury can infer a guilty scienter. Burroughs v. State, 24 Ala.App. 579, 139 So. 115; Pate v. State, 26 Ala.App. 487, 162 So. 571; Weaver v. State, 24 Ala.App. 694, 131 So. 927. We quote, in support of our conclusions, an excerpt from the opinion of our Presiding Judge in Bivens v. State, 27 Ala.App. 304, 171 So. 755, 756, which is quite applicable: "We are of the opinion that the state failed to meet the necessary burden of proof and that there was no evidence tending to connect the accused with the crime charged. In numerous decisions it has been held the mere finding of prohibited liquors on the premises of the defendant when he 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. Huckabaa v. State, 23 Ala.App. 333, 125 So. 202; Talbot v. State, 23 Ala.App. 559, 129 So. 323, 324; Hutcheson v. State, 21 Ala.App. 174, 106 So. 206; Johnson v. State, 20 Ala. App. 598, 104 So. 352; Bush v. State, 20 Ala.App. 486, 103 So. 91; Ammons v. State, 20 Ala.App. 283, 101 So. 511; Spelce v. State, 20 Ala.App. 412, 103 So. 694."

These cases, Curlee v. State, Ala.App., 196 So. 747, and others of similar import impel us logically to the inescapable conclusion that the defendant in the instant case was entitled to the general affirmative charge, requested, and for us to conclude otherwise would be to subvert our plain duty.

It appears from the evidence that the living quarters of defendant and her husband, including the kitchen where the liquor was found, was under the same roof with and adjacent to a dance hall and beer parlor owned by defendant--and for the operation of which beer parlor defendant had a proper "beer license."

The learned...