
    (132 So. 65)
    WASHINGTON v. STATE.
    4 Div. 760.
    Court of Appeals of Alabama.
    Jan. 13, 1931.
    Sollie & Sollie, of Ozark, for appellant.
    
      Charlie C. McCall, Atty. Gen., for the State.
   SAMFORD, J.

The defendant in this case was convicted of unlawfully possessing prohibited liquors. In the case of Huckabaa v. State, 23 Ala. App. 333, 125 So. 202, 203, this court reaffirmed the rule theretofore announced in several eases that in prosecutions of- this character “there must be a guilty scienter before a defendant can be convicted of crime, and this must be established by the evidence beyond a reasonable doubt.” The defendant is presumed to be innocent of crime until his guilt is established by evidence whit'h beyond a reasonable doubt overcomes this presumption, and this can never be done by proving a mere constructive possession of an article, the possession of which is a crime. In this particular case a few empty bottles were found in the house where defendant lived, all empty, an empty keg in the chimney corner, and a rubber tube in the crib. Bottles filled with water were found near a spring about forty yards from the house. Over a fence and further on was found a zinc bucket filled with water, and still further on a jug containing whisky and a pint bottle containing whisky. The defendant was not at home; there is no evidence as to when he had been there or whether he had ever been in position to see or to know that any of the above articles were located as testified to. The whisky found was not even proven to be on the premises of defendant, nor was there any evidence connecting the whisky found with the bottles found' in defendant’s house. The defendant was entitled to the general charge.

Reversed and remanded.  