8 Div. 418.
March 1, 1932.
Appeal from Circuit Court, Lauderdale County; J. F. Johnson, Jr., Judge.
William Warren was convicted of unlawfully possessing prohibited liquors, and he appeals.
F. S. Parnell, of Florence, and Henry D. Jones, of Russellville, for appellant.
The charge in the complaint that defendant "did buy" prohibited liquor constitutes no offense, and is unknown to the law. The state had the burden of proving each alternative averment, and there was no proof that he "did buy," etc. He should have him discharged. Griffin v. State, 22 Ala. App. 369, 115 So. 769. The burden was upon the state to prove defendant guilty beyond a reasonable doubt and to a moral certainty. Such convincing proof was not offered, and defendant was entitled to be discharged. Ammons v. State, 20 Ala. App. 283, 101 So. 511; Clayton v. State, 22 Ala. App. 276, 114 So. 787; Williams v. State, 22 Ala. App. 425, 116 So. 413; Hutcheson v. State, 21 Ala. App. 174, 106 So. 206; Perkins v. State, 24 Ala. App. 231, 133 So. 307; Huckabaa v. State, 23 Ala. App. 333, 125 So. 202; Talbot v. State, 23 Ala. App. 559, 129 So. 323. The state having elected to prosecute defendant for possession of five gallons of liquor, it was error to admit evidence of the possession of other liquor. Chandler v. State, 23 Ala. App. 376, 125 So. 791; Abrams v. State, 17 Ala. App. 379, 84 So. 862; Mitchell v. State, 22 Ala. App. 300, 115 So. 149; Stowers v. State, 21 Ala. App. 501, 109 So. 561; Sawyer v. State, 20 Ala. App. 504, 103 So. 309.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The complaint was in Code form, and the fact that it contained an alternative averment "did buy" would not render it subject to demurrer or motion to strike. Berry v. State, 24 Ala. App. 221, 133 So. 308; Jinright v. State, 220 Ala. 268, 125 So. 606; Green v. State, 23 Ala. App. 631, 126 So. 925. Where the trial is by the court without a jury, the court's finding will be treated like a jury verdict. Peterson v. State, 17 Ala. App. 662, 88 So. 49; Williams v. State, 17 Ala. App. 442, 85 So. 879: Hauk v. State, 18 Ala. App. 554, 93 So. 220; Jaye v. State, 23 Ala. App. 391, 127 So. 244. Incompetent evidence will be disregarded, as it will be presumed on appeal that a court trying a case without a jury considered only such evidence as was competent. International Agri. Corp. v. Southern R. Co., 188 Ala. 354, 66 So. 14; Douglass v. Orman, 22 Ala. App. 518, 119 So. 601. And an error in the admission of evidence will not authorize a reversal if the judgment rendered is sustained by legal evidence. Copeland v. Warren, 214 Ala. 150, 107 So. 94; Pensacola C. R. Co. v. Brooks, 14 Ala. App. 364, 70 So. 968; Gladney v. State, ante, p. 25, 140 So. 176.
Appellant was convicted of the offense of unlawfully having in possession prohibited liquor. Code 1923, § 4621.
The complaint upon which he was tried was not defective as for that it charged appellant with the offense of "buying," etc., the said alleged prohibited liquor. Such is now a violation of the law in Alabama. Jinright v. State, 220 Ala. 268, 125 So. 606.
It is true that "when a case at law is tried by a judge without a jury, and illegal evidence is introduced, it will require a reversal of the judgment, unless the remaining evidence is without conflict and sufficient to support the judgment." Springer et al. v. Sullivan, 218 Ala. 645, 119 So. 851, 852.
But we are not persuaded that the evidence objected to, and to the overruling of which objection exception was duly reserved in this case was irrelevant, and hence illegal.
In the opinion in the case last above cited is contained the following quotation: "Facts are relevant which logically tend to prove or disprove the fact in issue, or which afford a reasonable inference, or shed light upon the matter contested. * * * Whether evidence offered is too remote is for the court in the exercise of a sound discretion, and such ruling will not be revised on appeal, unless it is plain that error was committed." Citing Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216.
In this case a jug of liquor, which the evidence properly, and sufficiently, tended to show was "prohibited," in the eyes of our law, was found on, or adjacent to, premises occupied by appellant.
It was therefore relevant and proper to introduce testimony tending to show appellant's going to and from said jug and bringing away from it bottles of liquid which the court might well have found came out of it, all this as bearing directly upon appellant's having in "possession," vel non, said jug.
Reviewing, as we are required to do, the judgment of the lower court on the facts, and, under the rule laid down for us, we are of the opinion that the judgment of the trial court "was not plainly erroneous nor manifestly wrong, and that the court did not commit other error during the trial." Springer et al. v. Sullivan, supra.