Opinion
4 Div. 839.
November 17, 1931.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
James McKinnon was convicted of violating the prohibition law, and he appeals.
Reversed and remanded.
The affidavit upon which defendant was tried reads, in substance, as follows: "Before me, J. B. Dykes, a Justice of the Peace in and for said county, personally appeared O. H. Teal, who being first duly sworn, deposes and says on oath that in said county on or about March the 31st. one James McKinnon did violate the Prohibition Law by having in his possession prohibited liquors against the peace and dignity of the State of Alabama."
The demurrer and motion to quash assert that said affidavit is insufficient to authorize the issuance of a warrant and arrest, in that it failed to show when said offense was committed, and that it failed to affirm a probable cause for believing the defendant guilty of the offense charged.
Guy W. Winn, of Clayton, for appellant.
Counsel discusses the questions raised and treated, but without citing authorities.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The affidavit upon which this prosecution was predicated was authorized by section 4644 of the Code 1923. The motion to quash and the subsequent demurrers thereto were properly overruled by the court.
The evidence in this case, however, fails to meet the required rule, and in its worst phase creates merely a suspicion that the bottle of whisky found in a path near the defendant's home belonged to him or was in his possession. There was no evidence tending to connect this appellant with the possession of the contraband liquor, the subject of this prosecution, and, in the absence of evidence to this effect, a conviction for the offense must of necessity rest on suspicion, surmise, or conjecture, and such evidence will not sustain a conviction. Under the whole evidence the accused was entitled to the general affirmative charge requested in writing and refused.
The error of the court in refusing the affirmative charge to defendant necessitates a reversal of the judgment of conviction from which this appeal was taken. It is so ordered.
Reversed and remanded.