Gilbert v. State , 21 Ala. App. 175 ( 1925 )

BRICKEN, P. J.

This court has given attentive consideration to the evidence in this case, with the view of ascertaining its sufficiency to sustain the judgment of conviction from which this appeal is taken. The conviction of this appellant, defendant in the court below, rested upon the evidence of state witness Fain, and the testimony of this witness as to the salient or material facts is based upon hearsay and supposition only. Such testimony has no place in law. This is elementary under the simplest rule of evidence.

The defendant was convicted under count 2 of the indictment, which charged him with the unlawful possession of a still, apparatus, or appliance to be used for the purpose of manufacturing alcoholic or spiritu ous liquors, etc. In a prosecution for this offense there are of necessity two principal inquiries : (1) Was the apparatus or appliance in question such as comes within the inhibited terms of the statute? (2) Did the defendant have it in his possession? If the proof adduced, under the required rules, fails in either of these questions, there can be no conviction. Our opinion is that the legal evidence in the case at bar fails to establish either of these propositions.

As to the first inquiry, witness Eain predicated his judgment (?) on what “they say.” He testified: “I have never seen a whisky still in my life. I have heard about ’em and had ’em described.” And in response to the question by the solicitor, “in your judgment what was that, a whisky, still?” he answered, “Yes, sir, in my judgment that was a still, they had the vessels there to make something in.” All this was over the timely and proper objections and exceptions of defendant. Eain also testified: “It had cane skimmings, the can did. He did not have any thing under the pipe; no vessel of any sort.” And on redirect examination the solicitor asked him, “Cane skimming is used for making w'hisky. ain’t it?” to which he replied, “They say so.” The defendant duly objected to the question, which was overruled, and also made motion to exclude the answer, stating every imaginable ground. This motion was overruled. That these rulings were error, to a reversal, needs no discussion.-

The possession by this defendant of the apparatus in question was not shown by the required measure of proof, and for this reason, also, the affirmative charge, requested in writing by defendant, should have been given.

Other insistences of error are presented, some of which appear meritorious; but from what has been, said there is no necessity for further discussion. Under the evidence adduced upon this trial, the defendant should have been discharged.

Reversed and remanded.