Appellant was by a jury found guilty of the offense of the illegal possession of prohibited beverages. A fine of $500 was assessed against him and the cоurt imposed a sentence of nine months at hard labor as additional punishment for said offense.
The testimony for the State tended to show that the Sheriff and other officers of Shelby County seized six and a half pints of bottled in bond whiskey and thirteen pints of white “moonshine” whiskey which was found hidden under grass, leaves and sticks at the base of telephone posts, trees and bushes in the vicinity of appellant’s house. The whiskey found nearest to his home was along the driveway some twelve feet from the house. The farthest hiding place was approximately forty-five steps from the back of his hоuse.
The Sheriff testified that when he drove up to appellant’s home appellant was talking with one Sam L. Dawson. He further stated that appellant was holding in his hand four $1 bills and Dawson had a pint of whiskey.
Appellant’s home was located adjacent to Second Street, which was a dedicated but unopened street of the town of Calera. Appellant testified that the property oh which the whiskey was found actually belоnged to the City and that none of the whiskey was found on his property. It was shown that the Alabama Power Company held an easement over prоperty to the rear of defendant’s premises.
It appeared from the testimony that defendant was using a part of the unopened streеt as a driveway and that he had built a dog house, a garage or smoke house and> an outhouse and had planted a hedge and other shrubbery оn the City’s property. Appellant testified he kept the weeds and grass cut over a portion of the property.
The closest house was across the road and was some 120 feet from appellant’s home. Appellant stated that people living behind him used a part of Sеcond Street as a walkway.
A search of a Chrysler automobile, parked in the driveway, revealed one or two cases of empty pint bottles. There were several cases of empty bottles in the smoke house. These bottles were similar to those containing whiskey.
Appellant testified that Mr. Dawson had stopped for a drink of water and brought the pint of whiskey with him. Appellant denied that he had any connection with the whiskey or that he had any knowledge it was there.
Appellant and his wife testified that the Chrysler automobile belonged to his wife and that she had picked up some of the empty bottles.
“It
has many times been held by this court that a constructive possession alone is not sufficient to justify a conviction for the unlawful possession of whisky. There must be evidence from which the jury can infer a guilty scienter. Burroughs v. State,
It is equally well settled that such guilty scienter may bе established by circumstantial evidence, Emerson v. State,
We are of the opinion the facts and circumstancеs shown here presented a jury *661 question, and that the evidence was sufficient, if believed by the jury beyond a reasonable doubt, to authorize a conviction. The court did not err in denying the motion to exclude the evidence; in refusing the general affirmative charge; nor in overruling the motion fоr a new trial on the ground of the insufficiency of the evidence to sustain the judgment.
The following appears in the record:
“By Mr. Wallace: We object to the statement of the Solicitor that if the State had not made out a case the court would have taken it from the jury, and ask the court to instruct the jury that is improper argument.
“By Mr. Fоwler: I would like for the record to show counsel for the defendant, each of them in their argument to the jury, said in substance to the jury that the State had not made out a case.
“By The Court: Overrule the objection.
“By Mr. Wallace: We except.”
This argument of the Solicitor to the jury -is made the basis of appellant’s next insistence of error.
In the annotatiоn, “Statements or argument by prosecuting attorney calculated to give jury impression that court believed defendant guilty, a ground for new trial or reversal,”
In Loyall v. Commonwealth,
The сourt held that the argument, although concededly improper, was not so conclusively misleading and prejudicial as to constitute reversiblе error “when considered in connection with the admonition of the court, directing the jury to be governed in their findings by the evidence and not by the arguments of counsel.”
In State v. Nathoo,
We conclude that the argument оf the solicitor was improper and the court, by its ruling, approved and sanctioned the statement of the prosecuting attorney.
*662 We find no error in this incident disclosed by the record :
“By Mr. Wallace: I want to except to the Court’s statement in the presence of the jury that the defendant could be convicted for this whiskey being on land оther than land of his own if they found he put it there.
“By the Court: The Court would like for the record to show what Mr. Ellis said in his argument. I was simply replying to Mr. Ellis. It was in response to questions addressed by Mr. Ellis to the Court, and it wasn’t to the jury but a statement to Mr. Ellis with reference to the law.”
No exception was reserved to any part of the oral charge.
The charges refused to defendant were affirmative in nature, abstract, covered by the court’s oral charge, or asserted incorrect principles of law and were properly refused.
For the error set out above the judgment is reversed and the cause remanded.
Reversed and remanded.