The prosecution in this case originated in the County Court of Lawrence County, Alabama. Said court was established by an act of the Legislature, approved August 29, 1919. Local Acts Alabama, 1919, page 86. Section 13, of said act, provides: “that prosecutions may be instituted or commenced in said County Court as is now provided for by law.”
As a consequence of the foregoing provision, in order to properly bring a charge of misdemeanor in said court, it is necessary to comply with the provisions and requirements of Section 3815 of the Code 1923, wherein it is provided that a party aggrieved, or desiring to bring a charge of misdemeanor before the County Court, may apply to the judge thereof, or to some justice of the peace of the county, for a warrant of arrest, and upon making affidavit in writing, that he has probable cause for believing, and does believe, that an offense (designating the misdemeanor by name, or by some other phrase which in common parlance designates it) has been committed in said county, by C. D. (naming the offender) and to properly name the alleged offender his Christian name should be stated, if known, and if such Christian name is not known to affiant, that fact should appear in the affidavit, by the statement, “whose name is otherwise unknown to affiant.” Du Bose v. State, 19 Ala.App. 630, 99 So. 746.
The affidavit upon which this prosecution is based in no manner complies with the foregoing necessary requirements, and as a consequence is void, and a judgment of conviction could not be had thereon. Johnson v. State, 82 Ala. 29, 2 So. 466; Miles v. State, 94 Ala. 106, 11 So. 403; Butler v. State, 130 Ala. 127, 30 So. 338; City of Selma v. Shivers, 150 Ala. 502, 505, 43 So. 565; Chappell v. State, 156 Ala. 188, 192, 47 So. 329; Ethridge v. State, 26 Ala.App. 600, 164 So. 397; Slater v. State, 230 Ala. 320, 162 So. 130.
Pretermitting the foregoing, which has merely been stated for the guidance as to proper procedure in said court.
The attempted charge in the case at bar was that the accused did on the 17th day of April 1937 sell prohibited liquors. No-other alternative averment was contained in the purported affidavit.
As a consequence, the State was-under the duty to offer evidence, under the required rule as to measure of proof, to-sustain said charge. This the State failed to do. A careful consideration of the entire evidence fails to disclose that this appellant sold prohibited liquors. We find upon investigation that but two witnesses-were examined upon the trial of this case. The Sheriff and his son. Each of them testified they saw the defendant in her home in possession of some beer. When' asked the direct question, witness G. D. Byars (Sheriff) replied: “I do not have any knowledge that any beer was sold.” Likewise, State witness Roy Byars (Deputy Sheriff) stated: “I didn’t see any money passed there that day. So far as I know there wasn’t any sale made.” The foregoing being the only testimony offered to support the charge of selling prohibited liquors, it is difficult to conceive how the lower court could permit the conviction to stand, and upon what theory the affirmative charge requested by defendant was refused, or the motion for a new trial overruled.
Conviction for crime cannot be predicated upon suspicion. Moon v. State, 19 Ala.App. 176, 95 So. 830; Gay v. State, 19 Ala.App. 238, 96 So. 646; Ammons v. State, 20 Ala.App. 283, 101 So. 511; Coggin v. State, 23 Ala.App. 135, 122 So. 186; Fennoy v. City of Hartselle, 23 Ala.App. 294, 124 So. 399.
Jury may not convict on mere conjecture as to what accused may have. done. Hightower v. State, 23 Ala.App. 235, 123 So. 287; Catrett v. State, 25 Ala.App. 331, 146 So. 287.
Mere suspicion, surmise, or conjecture will not sustain conviction. Me
The judgment of conviction from which this appeal was taken is reversed. As no conviction can be had in this case, as above stated, a judgment is here rendered discharging appellant from further custody in this proceeding.
Reversed and rendered.