Wilbanks v. State, 7 Div. 406.
| Decision Date | 21 February 1939 |
| Docket Number | 7 Div. 406. |
| Parties | WILBANKS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from DeKalb County Court; W. J. Haralson, Judge.
H. N Wilbanks was convicted of unlawfully possessing prohibited liquor, and he appeals.
Reversed and remanded.
J. A. Johnson, of Fort Payne, for appellant.
Thos S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen for the State.
The Trial Judge did not err in refusing to give at the request of the defendant those certain charges seeking an instruction to the jury that "under the present law and the rulings of the Attorney General it is not a violation of the laws of the State of Alabama, to have in possession in a person's home, State stamped liquors or beverages, if the seal is unbroken."
The questions involved in these charges were fully considered and held adversely to the contention of the appellant in Allbright v. State, 27 Ala.App. 2, 165 So. 259 certiorari denied 231 Ala. 372, 165 So. 260. Other cases since that time have consistently followed those decisions. Flippo v. State, 27 Ala.App. 237, 170 So. 494; Haire v. State, Ala.App., 178 So. 897; Carroll v. State, Ala.App., 179 So. 397.
In the instant case, two deputy sheriffs entered a home owned and occupied by this defendant's wife. They found a quantity of beer and whiskey, which they confiscated as being the property of this defendant. The defendant was not on the premises; he laid no claim to the whiskey or the beer; and the testimony in no way connects the defendant with its possession except the bare fact that he is the husband of the woman who owns the property and who resides therein.
Constructive possession of prohibited liquor, alone, is not sufficient to justify a conviction. There must be a guilty scienter shown by the evidence, beyond a reasonable doubt. Perkins v. State, 24 Ala. App. 231, 133 So. 307; Eldridge v. State, 24 Ala.App. 395, 135 So. 646; Scott v. City of Troy, 24 Ala.App. 453, 136 So. 432.
In the instant case the evidence is without conflict that this defendant did not own the premises on which the prohibited liquor was found; nor is there any evidence tending to connect this defendant with its possession. The Court should have given the general affirmative charge as requested by the defendant.
In his closing argument to the jury the Solicitor made use of this statement: This was a statement of fact not warranted by the evidence. The defendant objected to the statement; the Court...
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...that the statement of instant concern comes within this category. Had the objections been overruled, the case of Wilbanks v. State, 28 Ala.App. 456, 185 So. 770, would In the Wilbanks case, supra [28 Ala.App. 456, 185 So. 771], op. cit., the court said, apropos the instant enquiry: 'In his ......
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Sprinkle v. State
...255 (1967), and to see that the state's case if properly presented to the court and jury as made by the evidence. Wilbanks v. State, 28 Ala.App. 456, 458, 185 So. 770 (1939); Williams v. State, 34 Ala.App. 253, 39 So.2d 29 "The office of solicitor is of the highest importance; he is the rep......
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