
    (123 So. 287)
    HIGHTOWER et al. v. STATE.
    (5 Div. 750.)
    Court of Appeals of Alabama.-
    June 25, 1929.
    Denson & Denson and Samford & Samford, all of Opelika, for appellants.
    Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen., for the State. '
   BRIOKEN, P. J.

After a careful, attentive consideration of this case by the court sitting en banc, we have reached the conclusion that under the undisputed facts the state failed to meet the burden of proof resting upon it necessary to a conviction under the second count of the indictment. Here, as in all criminal prosecutions, the presumption of innocence attended these appellants, and, in order to overcome such presumption, the state was under the duty to show, by the evidence (and that alone), their guilt beyond a reasonable doubt and to a moral certainty. The two latter terms are in effect synonymous.

The testimony in this case affirmatively shows that one Rochelle Mathews owned and was in the possession of the still in question, and that he had pleaded guilty to the offense, and was, at the time of this trial, serving a term of imprisonment therefor in the penitentiary. There is no evidence showing, or tending to show, that either of these appellants was ever at the still place previously to the time the officers arrested them upon their arrival near there on a wagon, and before they had alighted from the wagon. Nor is there any evidence showing, or tending to show, that they, or either of them, ever exercised any control, dominion over, or possession of the still; and some evidence of this character is necessary and essential in order to sustain the charge. Mere presence at or near a contraband still is not sufficient upon which to base a verdict of guilt. A jury is not warranted in so finding upon a mere conjecture as to what the accused might have done, and where the evidence, as here, discloses the ownership and possession of the still in another, and at the same time fails entirely to show the guilt of the accused, the court should promptly so declare, and the affirmative charge in behalf of the accused should follow.

In this case the affirmative charge, requested in writing, was improperly refused. There was likewise error in overruling the motion for a new trial. Pouncey et al. v. State, 22 Ala. App. 455, 116 So. 803; Moultrie v. State, 20 Ala. App. 258, 101 So. 335; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Murphy v. State, 20 Ala. App. 624, 104 So. 686; Guin v. State, 19 Ala. App. 67, 94 So. 788; Seigler v. State, 19 Ala. App. 135, 95 So. 563.

Reversed and remanded.  