Lee v. State , 10 Ala. App. 191 ( 1914 )

PELHAM, J.

The prosecution was begun by affidavit, and it is not show that objection was made in tlie trial court to the failure of the solicitor to file a brief statement of the cause of complaint, as required by section 6730 of the Code, when the trial in that court is de novo, and no ruling of the trial court is shown: to have been invoked or made on this question. See Wright v. State, 136 Ala. 139, 145, 34 South. 223. Section 32 of the act commonly known as the “Fuller Bill” (Acts Sp. Sess. 1909, p. 92) authorizes prosecutions of this nature to be begun by affidavit, as well as by' indictment, and when so begun to continue, no matter in what court the trial is had, on the original affidavit; and this method of procedure has been recognized as a correct procedure by the Supreme Court under the provisions of the statute cited. — Fitzpatrick v. State, 169 Ala. 1, 53 South. 1021.

The affidavit upon which the defendant was tried charged a storing, keeping, or having in possession prohibited beverages for sale or unlawful disposition, as well as charging a sale thereof; and, as there was no evidence of a sale, the trial and conviction was undoubtedly on the theory of an unlawful storing, keeping, or having in possession. The place where the liquors were found was the dwelling house of the defendant, and used exclusively for that purpose.

It is contended by appellant that there was not sufficient evidence of guilt to submit the case to the jury, and that the court was in error in refusing the general charge requested by the defendant. No evidence was introduced in behalf of the defendant, and the evidence for the state, without conflict, showed that the officers found in the defendant’s house 64 half pints of whisky, one quart of whisky, four gallons of wine, a large barrel and several “crocus” sacks filled with empty bottles. It was also shown that the defendant had ordered 48 half pints of whisky in another person’s name that was intercepted and seized by the officers the day before the search of the house was made, and that the defendant had made statements in regard to this shipment which had a tendency to disclose a consciousness of guilt in connection therewith. These facts, taken into consideration with the unusual places in the house that the large quantities of liquor were found, some of it rebottled and kept under conditions and in bottles of sizes not usual for private use, and convenient for unlawful disposition, afforded sufficient evidence from which the jury could reasonably draw an inference of the defendant’s guilt of the offense charged, and the court properly refused to withdraw that question from the jury.

Affirmed.