Lawler v. State , 31 Ala. App. 458 ( 1944 )

Prosecution in a dry county for violating the prohibition law. Trial was before the court without a jury.

The insistence that the defendant should have been discharged for lack of evidence cannot be sustained.

The prohibited liquor was found in defendant's store, among the stock of canned goods, when he was present. There were other containers in the store which had "a fresh liquor smell." This proof, together with the evidentiary presumption written into the statute, Code 1940, Title 29, Sec. 155, clearly made the question of the defendant's guilt one of fact to be decided by the court. To hold that, as a matter of law, there was no substantial, adverse inference against the defendant and his innocence in regard to the whiskey would be patently unauthorized.

Nor do we think that error can be rested upon the refusal of the court to continue the cause because of absent witnesses. The discretion vested in this regard (Arant v. State, 232 Ala. 275,167 So. 540; Stephenson v. State, 28 Ala. App. 418,185 So. 910) was not abused.

No error appearing, the judgment must be affirmed.

Affirmed.

NOTE. The foregoing opinion was written by SIMPSON, J., formerly Associate Judge of this court. We have considered this case en banc and conclude that said opinion is correct. It is hereby approved and is adopted as the opinion of this court.