Brown v. State , 17 Ala. App. 414 ( 1920 )

The fact that the judgment entry recites that the defendant was tried on a complaint "for selling liquor" does not limit the charge to that offense in a restricted sense, but embraces the various charges in the statutes for a violation of the prohibition laws as set out in the complaint, which in this case embraces all of the charges under the prohibition law, including "keeping for sale." This court entertained a different view of the law until the decision of the Supreme Court in Ex parte State (8 Div. 207) 204 Ala. 1, 86 So. 213.

The evidence in this case shows that the defendant was found in this state in possession of 118 quarts and 85 pints of whisky. Under section 3 of an act of the Legislature approved September 25, 1915 (Acts 1915, p. 554), this was prima facie evidence that the defendant had the whisky for unlawful disposition, and although the defendant and the party with him testified that he was only passing through the state with the whisky to "bootleg" it in the state of Georgia, it remained a question of fact, to be determined by the court, sitting without a jury, as to whether this was true. That the defendant had the whisky in his possession for illegal purposes was admitted; that he said he intended to "bootleg" it in another jurisdiction was a self-serving declaration, not admissible in evidence, and without which there was no evidence that the whisky was to be carried out of the state, other than the bare fact that defendant lived in Atlanta, had gone from there to Louisville, Ky., and that, after buying the whisky, he had come from Louisville to Huntsville. In Maisel v. State, 81 So. 348,¹ this court differentiated the effects between presumptions of law and presumptions of fact. The rule there laid down is applicable here. There was in this case no evidence of a through bill of lading, as was the fact in Moragne's Case, 201 Ala. 388,78 So. 450; and Gudgers' Case, 249 U.S. 373, 39 Sup. Ct. 323,63 L. Ed. 653. The question of fact was for the trial court, and this court would not be justified in disturbing its findings.

There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

¹ Ante, p. 12.