Opinion
8 Div. 14.
November 26, 1940.
Appeal from Circuit Court, Jackson County; Schuyler H. Richardson, Special Judge.
Clarence Snodgrass was convicted of unlawfully possessing prohibited liquor, and he appeals.
Reversed and remanded.
H. T. Foster, of Scottsboro, for appellant.
Defendant could not be guilty of possession without a showing that he had knowledge of the presence of the liquor. There must be guilty scienter. Coggin v. State, 23 Ala. App. 135, 122 So. 186. Constructive possession alone is not sufficient to justify a conviction. Cope v. State, 24 Ala. App. 134, 131 So. 4; Burroughs v. State, 24 Ala. App. 579, 139 So. 115. The burden of proof, tending to connect defendant with the commission of the offense, was upon the State. This burden not having been discharged, defendant's motion for new trial should have been granted. George v. State, 22 Ala. App. 465, 116 So. 898; Williams v. State, 22 Ala. App. 425, 116 So. 413.
Thos. S. Lawson, Atty. Gen., and Willard McCall, Asst. Atty. Gen., for the State.
Where the evidence is conflict as to material facts, then it becomes a question for the jury. Shelton v. State, 144 Ala. 106, 42 So. 30; Way v. State, 155 Ala. 52, 46 So. 273. Possession of prohibited liquors includes any possession by manucaption or physical dominion, however briefly and in whatever capacity, for use, benefit or enjoyment of accused or any other person, and not merely for inspection and destruction. Haynes v. State, 27 Ala. App. 154, 167 So. 352; Bridgeforth v. State, 20 Ala. App. 20, 100 So. 564. Illegal possession of whiskey in any quantity whatsoever constitutes a violation of the law. Shaw v. State, 27 Ala. App. 199, 169 So. 20. A charge of illegally possessing prohibited liquor can be substantiated by circumstantial evidence, just as any other material fact, in establishing a criminal charge. Kirtland v. State, 27 Ala. App. 376, 172 So. 680.
Appellant was convicted for the unlawful possession of about one half pint of whiskey. Upon the conclusion of the evidence taken for the State, he moved to exclude the same and requested his discharge on account of the insufficiency thereof to sustain the charge. This motion was overruled by the court, as was his motion for a new trial which was thereafter seasonably and properly presented. Exception to the court's ruling was duly reserved.
Constructive possession alone is not sufficient to justify a conviction of the offense charged. Burroughs v. State, 24 Ala. App. 579, 139 So. 115; Pate v. State, 26 Ala. App. 487, 162 So. 571.
The "scintilla rule" cannot be invoked to uphold a criminal prosecution. In such cases there must be substantial evidence tending to support all the elements of the offense charged. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Curlee v. State, ante, p. 393, 196 So. 747; Thurman v. State, ante, p. 394, 196 So. 748.
The case, in its entirety, has been read and carefully studied by the court, sitting en banc, and we are of the opinion that the evidence for the State — weak, inconclusive and speculative as it was — was insufficient. To allow the conviction to stand would offend the rule announced by the foregoing decisions, as well as that in Cobb v. Malone, 92 Ala. 630, 635, 9 So. 738, 740. For "after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided" as to clearly convince us that to allow the conviction to stand would be "wrong and unjust."
The whole case considered therefore, as well as the forceful argument of the able assistant attorney general, it is our opinion that the learned trial court was in error in refusing to grant the motion of defendant for a new trial. The cause is therefore reversed and remanded.
Reversed and remanded.