Oldacre v. State

59 So. 715 | Ala. Ct. App. | 1912

WALKER, P. J. —

The indictment charged that the defendant “sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquors and beverages contrary to law,” etc. We are not of opinion that it can fairly be said that the evidence offered by the prosecution tended to support either of the charges made in the indictment. The testimony of the first witness examined for the state Avas to the effect that one night about or a little after dark he was at the residence of J. P. Rowe, when the defendant came up on the back porch, and told the witness to tell J. P. Rowe to come out there, that he had some whisky for him; that he told Rowe what the defendant said, and RoAve went out on the back porch, where the defendant was; that soon after that Rowe came back in the house; that he saw the defendant with a bottle of whisky when he came back; that Rowe was drinking, and Avas considerably under the influence of whisky before the defendant came, and remained in that condition until bedtime that night; that he never saw the defendant sell or deliver any whisky to J. P. Rowe or any one else. Another witness testified that J. P. RoAve had a pint bottle nearly full of liquor there that night, but he did not know whether it was before or after the defendant was there.' The only other witness examined in behalf of the state was J. P. Rowe, whose testimony was to the effect that he never at any time got any prohibited beverage from- the defendant. In the absence of evidence tending to show that Rowe did not have the bottle of liquor above referred to before the defendant came to his house that night, such evidence as that above detailed could not legitimately support a conclusion that he got it from the defendant. There was an absence of any evidence tending to show that the defendant ever delivered any prohibited liquor to any one. There Avas no evidence that he ever offered to sell such liquor, or that he ever kept any such liquor in any kind of a building. Proof of his mere possession of a bottle of liquor on the occasion in question would not support a conclusion that he kept such liquor for sale or offered to sell it. As there was an absence of evidence to authorize a conviction, the motion of the defendant, made at the conclusion of the evidence offered by the state, to exclude that evidence, should have been granted. — Randolph, et al. v. State, 100 Ala. 139, 14 South. 792.

Reversed and remanded.