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18 Ala. App. 119

89 So 98

Mitchell v. State

Alabama Court of Appeals

Decided April 19, 1921

Alabama Court of Appeals · decided 1921-04-19

M. Miller, Judge. Jim Mitchell was convicted of distilling prohibited liquor, and he appeals. The defendant was entitled to a-directed verdict. 65 South. 683; 90 Ala. 630, 8 South. 383, 24 Am. St. Rep. 850; 16 Ala. App. 152, '75 South. 828.

Key passage — most relied on by later courts

““The mere fact that a small distilling outfit is set up in a wood 150 or 200 yards from defendant’s house, on land not in possession or under the control of defendant, and that one of the paths leading from the place went in the direction of defendant’s house, is a circumstance, and to he considered when other circumstances connect the defendant with the still, hut standing alone is not sufficient to convict.””

quoted by 1 later decision, including 19 Ala. App. 501 - Dawkins v. State

Relies on Ex Parte Mobile Light R. Co.

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1921-04-19

How this case has been cited

Cited by 19 later decisions — most recently February 1990

19 state decisions

10019211930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SAMFORD, J.

¶1 [1] We have examined carefully the evidence in this case, and, while we do not say there is not a “scintilla” of evidence connecting the defendant with the crime charged, we are clearly of the opinion that the evidence is not sufficient to discharge the burden necessary to overcome the presumption of innocence. The mere fact that a small distilling outfit is set up in a wood 150 or 200 yards from defendant’s house, on land not in possession or under the control of defendant, and that one of the paths leading from the place went in the direction of defendant’s house, is a circumstance, and to be considered when other circumstances connect the defendant with the still, but standing alone is not sufficient to convict.

¶2 [2] The proper place in the transcript for the court’s oral charge is not in the bill of exceptions, but in the record proper, along with the written charges given and refused. Any part of the oral charge excepted to must be set out in the bill of exceptions. A liberal view of the statute of 1915 (Acts 1915, p. 815) on this subject will be found in M. L. & R. Co. v. Thomas, 201 Ala. 493, 78 South. 399.

¶3 For the error pointed out, the judgment is reversed, and the cause is remanded.

¶4 Reversed and remanded.

¶5 other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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