
    153 So. 891
    HARVEL v. STATE.
    7 Div. 24.
    Court of Appeals of Alabama.
    Jan. 30, 1934.
    Rehearing Denied March 6, 1934.
    Thos. W. Millican, of Fort Payne, for appellant.
    Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
   BRIOKEN, Presiding Judge.

This appellant was convicted of the offense of violating the prohibition law by having whisky in his possession. The case was tried by the court without the intervention of a jury.

It is here insisted that the evidence was insufficient, and that the state failed to meet the burden of showing that the defendant was guilty, as charged, beyond a reasonable doubt. This is the only question presented upon this appeal. This insistence cannot be sustained. The several arresting officers testified directly to the effect that this appellant, in the company of others, drove to the place in question and they saw this defendant get out of the car with a pint fruit jar of whisky. That he held it up and shook it and then walked back up to the spring with the jar in his hands; that some one in the crowd sang, “Pass around the bottle and we’ll all take a dram.” That this appellant still had the jar of whisky in his hands and said some kind of a toast and started to take a drink when they walked out on them; that he threw the jar in a patch of briers, and they went at once and picked it up; that some of the whisky spilled when he .threw the bottle, but that some whisky still remained in the bottle. The defendant and his witness Jack McKinney testified that the jar in question contained water and not whisky as testified to by all of the state witnesses. This conflict in the evidence presented a question of fact for the court to determine, and it was ample to sustain the finding of the court and the judgment of conviction pronounced and entered. Said judgment will stand affirmed.

Affirmed.  