Oldacre v. State ( 1917 )

The defendant was convicted of having in his possession at one time more than two quarts of spirituous liquors, "as charged in the second count" of the complaint. This was an acquittal of the charges embodied in the first count, and the rulings of the court as to this count are not presented for review. Brewer v. State, 83 Ala. 113, 3 So. 816, 3 Am. St. Rep. 693.

The contention of the appellant that it was not a violation of the law for the defendant to have in his possession more than one-half gallon of spirituous liquor was without merit. Acts 1915, p. 44, § 12; O'Rear v. State, 15 Ala. App. 17,72 So. 505; Howard v. State, 15 Ala. App. 411, 73 So. 559; Moragne v. State, ante, p. 26, 74 So. 862.

The demurrers to the second count of the complaint were properly overruled, and charges 1, 5, and 6 were refused, without error.

There was no evidence offered on the trial showing that the defendant sold, offered for sale, or otherwise disposed of prohibited liquors, and the only circumstance that could possibly justify the submission of the case to the jury is that the liquor discovered by the officers was concealed on the defendant's premises. This circumstance is fully explained by the facts attending its discovery and the res gestæ of the occurrence, showing clearly that the defendant had no knowledge that the liquor was on his premises, or at least that it was not in his custody and he had no control over it or title or interest in it.

If the fact that the liquor was concealed on the defendant's premises had not been fully explained by the res gestæ of its discovery by the officers, but the explanation had come after time for meditation and the concoction of an excuse, a different question would be presented.

We, therefore, hold that the court should have directed a verdict for the defendant, as requested, and for this error the judgment will be reversed and the cause remanded.

Reversed and remanded.