Opinion
7 Div. 111.
June 25, 1935.
Appeal from De Kalb County Court; L. L. Crawford, Judge.
Dewey Pate was convicted of unlawfully possessing prohibited liquor, and he appeals.
Reversed and remanded.
Thos. W. Millican, of Cullman, for appellant.
Unless defendant, though in constructive possession, consented to the presence of prohibited liquor on his premises, a conviction for unlawful possession is unjustified. Cope v. State, 24 Ala. App. 134, 131 So. 4. Scienter is essential to illegal possession. Burroughs v. State, 24 Ala. App. 579, 139 So. 115; Dutton v. State, 25 Ala. App. 314, 145 So. 580; Coker v. State, 25 Ala. App. 191, 143 So. 206; Scott v. Troy, 24 Ala. App. 453, 136 So. 432.
A. A. Carmichael, Atty. Gen., for the State.
Brief did not reach the Reporter.
It has many times been held by this court that a constructive possession alone is not sufficient to justify a conviction for the unlawful possession of whisky. There must be evidence from which the jury can infer a guilty scienter. Burroughs v. State, 24 Ala. App. 579, 139 So. 115.
When the evidence for the state was all in and the state had rested its case, the defendant made a motion to exclude the evidence and to discharge the defendant. Denial of defendant's motion to exclude all evidence is never reversible error. McMullen v. Daniel, 229 Ala. 194, 155 So. 687.
However, there was not sufficient evidence to connect the defendant with the possession of the whisky, and therefore defendant's motion for a new trial should have been granted.
The judgment is reversed and the cause is remanded.
Reversed and remanded.