Opinion
8 Div. 583.
May 24, 1927.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
W. Oscar Vinson was convicted of violating the prohibition law, and he appeals. Reversed and rendered.
The sole witness in the case (one Wood) testified in substance as follows:
On February 5, 1927, Wood and the defendant left Russellville together in Wood's car. Wood was taking defendant to his home in Red Bay. On the way Wood remarked to defendant that he was overworked, had a severe cold, and thought, if he could find some whisky, it would be good for him. Defendant replied that he did not know where any of the kind Wood wanted was, but he would see if it could be found, and that, if he could find any, he would give Wood some. Wood stopped his car in Red Bay two or three hours, and had stopped at defendant's house, between Russellville and Red Bay, probably five minutes on the way down. When he went to Red Bay, defendant went on with him. After Wood left Red Bay, going back to Russellville, and about 15 miles from Red Bay, he found a half gallon jar of whisky in his car, under the rear seat. Wood had stopped, before finding the whisky, at the store of one Morrow. Defendant came up with a stranger while Wood was at Morrow's. Defendant got in Wood's car there, and rode with him for some two miles, and then got out and got into another car at that point. Thereafter Wood found the whisky, having made no intervening stops. So far as Wood knew, no one had been in his car, except defendant and himself. During his stay in Red Bay, his car was parked in a public place, and a number of people were in town. Wood did not see defendant put the whisky in his car, saw no one else put it there, bought no whisky from any one, instructed no one to put it in his car, and had no knowledge of any one putting it there.
Stell Quillin, of Russellville, for appellant.
The evidence is not sufficient to support a judgment of conviction; no evidence to connect defendant with the possession of the liquor. Defendant should be discharged. Ex parte Acree, 63 Ala. 234; Spelce v. State, 17 Ala. App. 401, 85 So. 835; Tool v. State, 21 Ala. App. 233, 107 So. 36; Cantrell v. State, 21 Ala. App. 558, 110 So. 54.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Appellate and supervisory jurisdiction over the court from the judgment of which this appeal was taken is expressly conferred upon this court by statute.' Local Acts 1923, p. 272, § 24. We have carefully read and considered the entire record in this case, and hold that under all this evidence the conviction of this appellant was wrongful, and cannot be permitted to stand, because of the failure of the state to meet the required burden of proof. The evidence in this case was insufficient to overcome the presumption of innocence with which, under the law, the defendant was clothed; such presumption is evidentiary in its nature, and attended the accused throughout the trial, or until his guilt was shown by the evidence beyond all reasonable doubt and to a moral certainty. If it can be said that there was any incriminating evidence against this appellant as to the accusation here involved it was of the slightest character, and purely and entirely circumstantial, and was not sufficient to afford an inference of his guilt. The law is that a conviction resting solely upon circumstantial evidence should not prevail, or be permitted to stand, unless it is shown by a full measure of proof that the defendant is guilty. Thus said the eminent and lamented Mr. Justice Stone in the case of Ex parte Acree, 63 Ala. 234. In that case it was said:
"The humane provisions of the law are that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty by that full measure of proof which the law requires."
The above excerpt is peculiarly applicable to the instant case. We are of the opinion it would be unconscionable to permit the judgment of conviction, pronounced and entered in this case, to stand. At the conclusion of the evidence the court, who tried this case without a jury, should have promptly discharged the defendant. Failing in this, we hold that the adjudication of guilt was erroneous, and we here enter an order reversing the judgment of conviction, and discharging the defendant from further proceedings in this cause.
Reversed and rendered.