Pate v. State, 7 Div. 111.

7 Div. 111. | Ala. Ct. App. | Jun 25, 1935

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, 24 Ala. App. 579" date_filed="1932-01-12" court="Ala. Ct. App." case_name="Harper v. State">24 Ala. App. 579, 139 So. 115" date_filed="1932-01-12" court="Ala. Ct. App." case_name="Broadhead v. State">139 So. 115.

When the evidence for the state was all in and the state had rested its case, the defendant made a motion to exclude the evidence and to discharge the defendant. Denial of defendant's motion to exclude all evidence is never reversible error. McMullen v. Daniel, 229 Ala. 194" date_filed="1933-11-03" court="Ala." case_name="McMullen v. Daniel">229 Ala. 194,155 So. 687" date_filed="1933-11-03" court="Ala." case_name="McMullen v. Daniel">155 So. 687.

However, there was not sufficient evidence to connect the defendant with the possession of the whisky, and therefore defendant's motion for a new trial should have been granted.

The judgment is reversed and the cause is remanded.

Reversed and remanded.