
    (100 South. 81)
    (8 Div. 168.)
    GRAY v. STATE.
    (Court of Appeals of Alabama.-
    May 13, 1924.)
    Intoxicating liquors i&wkey;238(l) — Refusal of affirmative charge for defendant in liquor prosecution held erroneous.
    Refusal of affirmative charge for defendant in a liquor prosecution was erroneous, where evidence was insufficient to overcome defendant’s presumption of innocence, and there was no evidence that defendant committed any of acts charged.
    Appeal from Circuit Court, ’Limestone County; Osceola Kyle, Judge.
    Will Gray was convicted of violating the prohibition law, and he appeals.
    Reversed and demanded.
    J. G. Rankin, of Athens, for appellant.
    Harwell G. Davis, Atty. Gen. for the State.'
   BRICKEN, P. J.

This appeal rests upon the refusal of the trial court to give the affirmative charge for defendant which was requested upon the grounds that there was no evidence upon which to base a verdict of guilt or to sustain a judgment of conviction.

This court sitting en banc has read the entire record, and has considered this question, and the court is unanimous in the opinion that the charge should have been given. It clearly appears that the evidence in this case is insufficient to overcome the presumption of innocence to which the defendant was entitled. The testimony at best raises a mere suspicion, and is wholly insufficient to meet the required burden resting upon the state. Theré is not a scintilla of evidence that this defendant committed any of the acts charged in the first count of the indictment, and for this reason the court should have directed the jury to find a verdict acquitting the defendant, as requested in writing.

Reversed and remanded.  