¶1 The defendant was charged under section 4621 of the Code of 1923, with possessing prohibited liquor, and the evidence, without conflict, disclosed that defendant had in his possession and on his oto premises one gallon of strawberry wine, made by him from strawberries grown by. him on his own place in Blount county. This state of facts would have entitled defendant to his discharge under section 4706, Code 1923, and such would be the order here, but for the former rulings of this court and of the Supreme Court as illustrated by the case of Woodson v. State, 54 So. 191, 170 Ala. 87. In the instant case, as in the Woodson Case, supra, there is no ruling of the lower court authorizing a review of the facts, either by a request for the affirmative charge, or motion for new trial.
¶2 The prosecution in this case was not based upon section 4639, Code 1923. That section is within itself a separate and distinct misdemeanor, for which a separate indictment will lie, and without such no conviction may be had. Therefore, in a prosecution under section 4621, Code 1923, evidence that defendant kept a cold drink stand in a room adjoining the shed room in which the wine was found, was illegal, irrelevant, and immaterial. The court erred to a reversal in admitting this evidence' over the timely objection of defendant.
¶3 For the error pointed out, the judgment is reversed, and the cause is remanded.
¶4 Reversed and remanded.