Opinion
4 Div. 340.
January 10, 1928.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Tobe Coleman was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
A. G. Seay, of Troy, for appellant.
The same rules of evidence apply in the trial of prohibition cases as apply in the trial of other cases. Ammons v. State, 20 Ala. App. 283, 101 So. 511; Barker v. State, 20 Ala. App. 564, 103 So. 914; Bolton v. State, 21 Ala. App. 373, 108 So. 631. The burden of proof is on the state to show unlawful possession. Ammons v. State supra; Hogland v. State, 20 Ala. App. 461, 102 So. 784. Mere suspicion, surmise, or conjecture is insufficient to warrant a conviction. Parsons v. State, 20 Ala. App. 615, 104 So. 556.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The record in this case has been read and considered by the court en banc. State witness Hood was permitted to testify that he took defendant's wife down to the field where they had found a keg containing whisky, and asked her whose field it was, and she said it was Tobe Coleman's field. The defendant was not present. This testimony was illegal, and upon proper objection should have been excluded; but the defendant cannot be given the benefit of the point, as no ruling of the trial court was invoked in this connection, so far as the record shows.
We are convinced, and so hold, that the court committed reversible error in allowing the state, over proper objection and exception, to inquire relative to an alleged different offense from the one here charged, and for which the accused was only required to make answer. This line of inquiry was prejudicial, and for the error in these rulings the judgment appealed from must be reversed. What happened at another time, in the city of Troy, was not a proper inquiry upon this trial.
Reversed and remanded.