The whisky which forms the basis of this prosecution was found by the officers in the residence of defendant, one bottle full was in a closet in the dining room, and one half-gallon jar was in a back room covered up. The defendant was not at the house when the officers came, but there were other facts and circumstances in evidence which, taken in connection with the above, were sufficient to go to the jury on the question of a guilty scienter on the part of the defendant, and differentiates this case from Ammons v. State (Ala.App.) 101 So. 511.1 The affirmative charge was properly refused.
Charge 1, refused to defendant, was substantially covered by charge C, given at defendant's request.
Under section 4685 of the Code of 1923, the mere possession of prohibited liquors in a building used exclusively for a dwelling is not prima facie evidence that the whisky was kept for sale. The only evidence connecting this defendant with the whisky in question was a bare possession, coupled with certain facts and circumstances from which inferences could be drawn, that he had the whisky in his residence, and that he had a guilty knowledge of its presence there. There was no evidence which would warrant an inference by the jury that he had the whisky for sale. Charge B, requested by defendant, should have been given, and for the error in refusing it this judgment is reversed and the cause is remanded.
Reversed and remanded.
1 Ante, p. 283. *Page 601