Bradshaw Barnett, of Florence, for appellant. If whisky is found on the premises of one whom the evidence shows was not present, and there is no evidence connecting him with the whisky, there is no guilty knowledge shown, and he should be discharged. Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Talbot v. State, 23 Ala. App. 559, 129 So. 323; Lee v. State, 23 Ala. App. 403, 126 So. 183; 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, 17 Ala. App. 401, 85 So. 835. Thos. E. Knight, Jr., Atty. Gen., for the State.
The testimony shows defendant was not present on the occasion of finding the liquor; no incriminating circumstances are shown involving defendant, and no knowledge, notice, or agency on his part. He should have had the affirmative charge. Hutcheson v. State, 21 Ala. App. 174, 106 So. 206; Ammons v. State, 20 Ala. App. 283, 101 So. 511. Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.
Unless there is proof of this scienter defendant is entitled to the affirmative charge in his favor with hypothesis, requested by him in writing. Johnson v. State, 20 Ala. App. 598, 104 So. 352; Jacobs v. State, 23 Ala. App. 234, 123 So. 285; Ammons v. State, 20 Ala. App. 283, 101 So. 511; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. A.A. Carmichael, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
The motion to exclude the State's evidence and motion for a new trial were erroneously overruled. Clayton v. State, 22 Ala. App. 276, 114 So. 787; Phillips v. State, 22 Ala. App. 97, 112 So. 810; Spelce v. State, 17 Ala. App. 401, 85 So. 835; Ammons v. State, 20 Ala. App. 283, 101 So. 511; Fair v. State, 16 Ala. App. 152, 75 So. 828; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206; Allen v. State, 21 Ala. App. 23, 104 So. 867. Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
Parsons v. State, 20 Ala. App. 615, 104 So. 556; Ballentine v. State, 19 Ala. App. 261, 96 So. 732. Guilty scienter is an essential to a conviction. Burrough v. State, 24 Ala. App. 579, 139 So. 115; Pate v. State, 27 Ala. App. 73, 165 So. 783; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. Wm. N. McQueen, Atty. Gen., and Walter W. Flowers, Asst. Atty. Gen., for the State.
Defendant was entitled to the affirmative charge. Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Tuggle v. State, 22 Ala. App. 89, 112 So. 540; Ammons v. State, 20 Ala. App. 283, 101 So. 511; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for the State.
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."
There must be evidence of a guilty scienter. Henson v. State, 25 Ala. App. 118, 141 So. 718; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206. Where the evidence is not positive and clear, affirming every fact essential to guilt, or is circumstantial, this, coupled with the presumption of innocence, necessitates the denial of the affirmative charge to the State. Grimmett v. State, 26 Ala. App. 56, 152 So. 262; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Pate v. State, 19 Ala. App. 243, 96 So. 649; Brasher v. State, 21 Ala. App. 360, 108 So. 266. In this case the guilty scienter is shown only by inference and by circumstances, and the giving of the affirmative charge for the State cannot be upheld.
In support of the foregoing we need cite only the case of Perkins v. State, 24 Ala. App. 231, 133 So. 307, and cases therein cited; among which is the case of Talbot v. State, 23 Ala. App. 559, 129 So. 323, 324, from which the following is quoted: "We are of the opinion that the state failed to meet the necessary burden of proof and that there wag 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."
Griffin v. State, 22 Ala. App. 369, 115 So. 769. The burden was upon the state to prove defendant guilty beyond a reasonable doubt and to a moral certainty. Such convincing proof was not offered, and defendant was entitled to be discharged. Ammons v. State, 20 Ala. App. 283, 101 So. 511; Clayton v. State, 22 Ala. App. 276, 114 So. 787; Williams v. State, 22 Ala. App. 425, 116 So. 413; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206; Perkins v. State, 24 Ala. App. 231, 133 So. 307; Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Talbot v. State, 23 Ala. App. 559, 129 So. 323. The state having elected to prosecute defendant for possession of five gallons of liquor, it was error to admit evidence of the possession of other liquor. Chandler v. State, 23 Ala. App. 376, 125 So. 791; Abrams v. State, 17 Ala. App. 379, 84 So. 862; Mitchell v. State, 22 Ala. App. 300, 115 So. 149; Stowers v. State, 21 Ala. App. 501, 109 So. 561; Sawyer v. State, 20 Ala. App. 504, 103 So. 309.