Summary
In Lawler v. State, 31 Ala. App. 458, 18 So.2d 469, the timely failure to seek process to compel attendance of witnesses appears as the basis for a like decision.
Summary of this case from Milam v. StateOpinion
8 Div. 408.
June 13, 1944.
Appeal from Law and Equity Court, Franklin County; W.H. Quillin, Judge.
John J. Lawler was convicted of violating the prohibition law, and he appeals.
Affirmed.
It appears that the affidavit charging defendant with the offense and warrant for his arrest were issued on June 18, 1943, and the defendant was arrested and admitted to bail on that day. The case came on for trial August 23, 1943, whereupon defendant moved for a continuance upon the ground that defendant had witnesses — naming them — by whom he could prove that the liquor found in his store belonged to defendant's son, and sought a continuance until said witnesses could be summoned and brought into court.
Evidence on the motion tended to show that the liquor did not belong to defendant, but to his son, and that defendant was not aware of its presence in his store until it was found by the officers; that the arresting officers were told by the son that the liquor was his; and that defendant was under the impression that he would not be tried on the charges — his son having reported to him on a conversation he had with the solicitor — and for that reason defendant had not had his witnesses summoned. Evidence for the State tended to show that the son of defendant was then in the Navy; that other witnesses were still in the community; that defendant had two weeks previously been given notice by the clerk that his case would be set for trial on the day on which it was tried; and that defendant had made no effort to have his witnesses summoned. After hearing, the court overruled the motion, on ground that defendant had not shown diligence.
Wm. Stell, of Russellville, for appellant.
One having possession of liquor on the premises of another without the knowledge of the owner or the person in possession will not authorize a conviction of the owner or person in possession of the premises. Oldacre v. State, 16 Ala. App. 151, 75 So. 827; Trammell v. City of Roanoke, 23 Ala. App. 385, 125 So. 795. Appellant should have had a continuance in order to have his witnesses subpoenaed to prove his case.
Wm. N. McQueen, Acting Atty. Gen., and George C. Hawkins, Asst. Atty. Gen., for the State.
The granting or refusing of an application for continuance is a matter addressed to the discretion of the court, and the trial court will not be held in error unless it is positively shown there was a gross abuse of such discretion. Samples v. U.S., 121 F.2d 263; Arant v. State, 232 Ala. 275, 167 So. 540; Goodwin v. State, 27 Ala. App. 493, 175 So. 415; Bedsole v. State, 28 Ala. App. 27, 177 So. 308: Stephenson v. State, 28 Ala. App. 418, 185 So. 910. On the trial without a jury the judgment is equivalent to the verdict of a jury and will not be revised on appeal unless there is complete want of evidence to support it. Cawthorn v. State, 63 Ala. 157; Wren v. State, 70 Ala. 1; Summers v. State, 70 Ala. 16; Calloway v. State, 75 Ala. 37; Bell v. State, 2 Ala. App. 150, 56 So. 842; Whigham v. State, 21 Ala.App.). 454, 109 So. 281.
Prosecution in a dry county for violating the prohibition law. Trial was before the court without a jury.
The insistence that the defendant should have been discharged for lack of evidence cannot be sustained.
The prohibited liquor was found in defendant's store, among the stock of canned goods, when he was present. There were other containers in the store which had "a fresh liquor smell." This proof, together with the evidentiary presumption written into the statute, Code 1940, Title 29, Sec. 155, clearly made the question of the defendant's guilt one of fact to be decided by the court. To hold that, as a matter of law, there was no substantial, adverse inference against the defendant and his innocence in regard to the whiskey would be patently unauthorized.
Nor do we think that error can be rested upon the refusal of the court to continue the cause because of absent witnesses. The discretion vested in this regard (Arant v. State, 232 Ala. 275, 167 So. 540; Stephenson v. State, 28 Ala. App. 418, 185 So. 910) was not abused.
No error appearing, the judgment must be affirmed.
Affirmed.
NOTE. The foregoing opinion was written by SIMPSON, J., formerly Associate Judge of this court. We have considered this case en banc and conclude that said opinion is correct. It is hereby approved and is adopted as the opinion of this court.