Opinion
7 Div. 902.
June 14, 1932. Rehearing Denied June 30, 1932.
Appeal from Circuit Court, Clay County; E. P. Gay, Judge.
J. S. Pate, alias Ester Pate, was convicted of unlawfully possessing prohibited liquor, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Pate v. State (7 Div. 148) 226 Ala. 106, 145 So. 500.
J. J. Cockrell, of Talladega, for appellant.
Admission of incompetent evidence was reversible error. Gladney v. State, ante, p. 25, 140 So. 176; Warren v. State, ante, p. 29, 140 So. 177. Evidence raising merely a suspicion, surmise, or conjecture of the guilt of defendant is not sufficient on which to predicate a verdict of guilt. Gay v. State, 19 Ala. App. 238, 96 So. 646; Cohen v. State, 16 Ala. App. 522, 79 So. 621. There must be a conscious and substantial possession by defendant of the prohibited liquor before there can be any sort of criminality. Clayton v. State, 22 Ala. App. 276, 114 So. 787.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellant was convicted in the county court of Clay county of the offense of illegally having possession of prohibited liquor, to wit, whisky.
He appealed his case to the circuit court, where he was tried before a jury, and again convicted. Hence this appeal.
The case, in its legal incidents, and ramifications, is one of the simplest known to the law.
Merely a question, and but one of fact, was involved: Did appellant (time, place, and all other jurisdictional prerequisites being, if not admitted, unquestioned) have possession, illegally, of any quantity of prohibited liquor? Code 1923, § 4621.
There was direct, positive, testimony on the part of the state that he did. He, of course, denied it, and offered other testimony than his own, supporting his denial.
A jury question was the inevitable result.
We have carefully examined each exception reserved on the taking of testimony. Not one of same merits any discussion. In each instance the ruling underlying the exception was manifestly, and obviously, not prejudicially erroneous.
Likewise, we have examined each of appellant's requested and refused written charges. No one of them calls for any special comment.
As to each of same, unless the principle of law sought to be therein conveyed was obviously incorrect, or inapplicable, the same principle of law was otherwise duly given to the jury. Hence the refusal was proper. Code 1923, § 9509.
The entire proceedings were regular in every way, and we find nothing upon which to base a reversal of the judgment of conviction.
It is affirmed.
Affirmed.