The evidence in this case was largely circumstantial, but the evidence tended to connect the defendant with the possession of the still, and was sufficient to authorize the jury in returning a verdict of guilt. Where this is the case, this court will not disturb the jury's finding.
The presumptions given by appellate courts in favor of the judgments of lower courts on motion for a new trial, where the evidence is ore tenus, is not affected by Acts 1915, p. 722. Hackett v. Cash, 196 Ala. 403, 72 So. 52; McSwean v. McSwean, 204 Ala. 663, 86 So. 646; Mallory S. S. Co. v. Druhan, 16 Ala. App. 438, 78 So. 636. Observing this rule, we cannot say the court erred in overruling the defendant's motion for a new trial.
The fact that the witness Robbins, who was a federal officer, had been to the house of defendant on former occasions, was not an incriminating circumstance against the defendant, and the fact that he so testified over the objection of defendant was not reversible error.
The defendant offered to prove by S.M. Reeves, a state witness, and who was the officer making the arrest, that after the still had been found he (Reeves) told defendant and a man named Snyder to come to town the next day and make bond, and that defendant came and Snyder did not, but ran away. This evidence was not relevant under the facts in this case. There was no effort on the part of the state to prove flight against the defendant, and the fact that Snyder fled, while tending to prove a consciousness of guilt on his part, did not tend to show the defendant's innocence. Both the defendant and Snyder may have been guilty of making the whisky and of possessing the still.
For the reason that the testimony was immaterial, it was not error for the court to sustain objections to questions laying a predicate to Reeves as to what he (Reeves) had said was his opinion about finding whisky in Snider's house, if he had looked. Suppose he had, and from this evidence it is entirely possible he might, this fact would not have tended to disprove the defendants's guilt. *Page 677
Robbins, a witness for the state, was permitted to testify that while they were at the still he told defendant then and there that the still trough being used at the still on defendant's place was one he (Robbins) had found on a previous occasion, on the north side of defendant's house. This was in rebuttal and in contradiction of the defendant, who had testified that no such conversation took place.
We find no reversible error in this record, and the judgment is affirmed.
Affirmed.
On Rehearing. One of the grounds for a motion for a new trial was that the defendant had discovered other evidence in his behalf, since the trial and conviction, and as to ignorance of such evidence and diligence in preparing his case for trial brings himself well within the rule entitling the evidence newly discovered to consideration on the motion.
Except for the fact that the still found was located on land to which defendant held title, the evidence tending to convict the defendant was entirely circumstantial. The still was located about one-half mile from defendant's residence, in the woods near a branch, on land rented from defendant by one Mobley, in whose possession the land then was, that Mobley's dwelling and the dwelling of one Snyder, both being on land owned by defendant, were nearer to the still than that of defendant. The newly discovered evidence offered in support of the motion was to the effect that the witnesses testifying had been to the still about a week before the officers found it, and that it was in the possession, under the control, and was being operated by Snyder, and that defendant was not present, that the next day after the still was found by the officers Snyder called witness off, and asked him if he had heard about the officers getting his (Snyder's) still. The foregoing would have been competent evidence on the trial of the defendant, and, not being merely cumulative of testimony given, may have been sufficient to have generated in the minds of the jury a reasonable doubt of defendant's guilt. Where the evidence is circumstantial, tending to convict the defendant of crime, no matter how strong the circumstances, if the facts can be reconciled with the theory that another person may be the guilty agent, then the defendant should not be convicted. Cannon v. State, 17 Ala. App. 82, 81 So. 860; Ex parte Acree, 63 Ala. 234. That being the case, evidence tending to prove the guilt of another to the exclusion of defendant would be relevant. Davis v. State, 8 Ala. App. 211, 62 So. 382; McDonald v. State, 165 Ala. 85, 51 So. 629; Mason v. State,153 Ala. 46, 45 So. 472; Tatum v. State, 131 Ala. 32,31 So. 369; Walker v. State, 165 Ala. 96, 51 So. 357.
Where a defendant has not had the benefit of such testimony, and has acquitted himself of any negligence in failing to produce it, the trial court should on motion and proper showing grant a new trial. Dempsey v. State, 15 Ala. App. 199,72 So. 773.
Upon a reconsideration of the entire record this court is of the opinion that the defendant's motion for a new trial should have been granted. The judgment of affirmance is set aside, the judgment of conviction is reversed, and the cause is remanded.
Application granted. Reversed and remanded.