Sherrell v. State , 19 Ala. App. 57 ( 1922 )

The state's evidence tended to prove that, within the time covered by the indictment, a still to be used for the purpose of manufacturing prohibited liquors was found on the premises of the defendant in Chambers county, Ala. There were some other circumstances proven, tending to connect the defendant with the possession. This being the case, the court properly refused to give the general charge as requested by defendant.

The testimony as to wagon tracks and man tracks leading from the still to defendant's house was competent, along with other circumstances proven, to establish a guilty scienter on the part of defendant. Salter v. State, 17 Ala. App. 517, 85 So. 847. The state's evidence, if believed by the jury, established the constructive possession of the still, but before a conviction can be had on a charge of this character, there must be a guilty scienter proven, without which there can be no intent, a material ingredient of the crime charged. Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575; Marshall v. State, 49 Ala. 21. Therefore the constructive possession being established, any evidence, however slight, tending to show that the defendant knew or had reason to know that the still was on his premises, would be competent and relevant. 3 Greenleaf on Ev. 31; Cohen v. State, 16 Ala. App. 522, 79 So. 621. The tracks are admissible, not to identify the defendant, but as tending to prove communication between the still and defendant's home, which, taken with other circumstances, would authorize the jury to conclude that defendant knew of the still and its location.

We find no error in the record, and the judgment is affirmed.

Affirmed.