Opinion
4 Div. 822.
November 17, 1931. Rehearing Denied December 15, 1931.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
John Mathews was convicted of violating the prohibition law, and he appeals.
Affirmed.
Sollie Sollie, of Ozark, for appellant.
Where, on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or deny is relevant as tending to show guilt. His silence alone, however, raises no legal presumption of guilt, and is insufficient, without other evidence to connect him with the crime, on which to predicate a conviction. Jackson v. State, 167 Ala. 50, 52 So. 835; Johnson v. State, 17 Ala. 618; Brogden v. State, 18 Ala. App. 56, 88 So. 366. The affirmative charge should have been given at defendant's request; there being no other evidence against him.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The corpus delicti was proven. The testimony of the state tended to prove guilt of the defendant. His failure of denial in face of accusation was relevant to be considered with the other evidence. The affirmative charge was not due to be given. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126; Jackson v. State, 167 Ala. 44, 52 So. 835; Brogden v. State, 18 Ala. App. 57, 88 So. 366; Carr v. State, ante, p. 139, 131 So. 457; Clements v. State, 19 Ala. App. 640, 99 So. 832.
The testimony on the part of the state tended to show that some officers went to the house occupied as a home by appellant and searched same.
In a room occupied by appellant's mother, and between the mattresses of "her bed," they found a quantity of whisky. About the time of, or immediately after, the discovery of this whisky, appellant appeared at the door leading into the room where same was, whereupon his mother addressed to him this question: "John, what did you put that whiskey under my bed for?" to which question appellant made no reply, but, on the contrary, beat a prompt retreat.
We hold that the above constituted at least a "scintilla of evidence" pointing to the guilt of appellant as charged. Jackson v. State, 167 Ala. 44, 52 So. 835.
And it is now well understood that "a scintilla of evidence going to support plaintiff's [in this case, the state's] contention * * * made it necessary to refer the issue of fact thus raised to the jury for decision, in the first place at least." (Italics ours.) Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411, 412.
What we have said above disposes of all questions apparent deemed by us worthy of mention.
There appears nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.