The judgment of conviction in the lower court was based upon an affidavit charging the defendant with the offense of violating the prohibition laws of this State. The warrant was made returnable to the circuit court, in which court the trial was had without the intervention of a jury.
The affidavit contained several alternate averments; but the trial was based upon the specific charge of having in possession certain intoxicating liquors; and there was no evidence adduced upon the trial to sustain either of the other averments in the affidavit, nor was any attempt made to do so.
The facts in this case, as stated by respective counsel, in briefs, were without dispute or conflict. It was disclosed, by the evidence adduced upon the trial, that on the day in question the defendant was arrested on the U.S. 241 Highway, by one Allison, the only witness for the State, and at the time of said arrest the defendant was on his truck in which there were three cases of whiskey, containing 72 pints and labelled "Distillers Pride." The State's witness testified that said whiskey had United States stamps upon all of it, but did not have, at the time, Alabama State Stamps thereon. As stated, the foregoing was without dispute, the defendant admitted having said whiskey in his possession, but in this connection testified he had regularly and legally bought said whiskey, about two hours and a half before his arrest, in the State of Tennessee and had only had the whiskey in his possession for that length of time. All this occurred in the County of Madison, which County we judicially know is a wet County and possession of legal whiskey is permissible.
Under the above agreed facts no law of this State had been violated, nor had any of the rules and regulations of the Alabama Beverage Control Board been transgressed. Section 49 of the Alabama Beverage Control Act, Gen.Acts 1936-37, Sp.Sess., p. 80, Code 1940, Tit. 29, § 66, is conclusive of this question. Said section reads as follows: "Section 49. Any person, firm, corporation, club or association of persons, who purchases, and/or receives, and/or who brings into the State in any manner whatsoever, any of the articles of alcoholic beverages enumerated herein, which does not have affixed revenue stamps, crowns or lids, or stamps or identification as described in this Act, shall within three (3) days of the receipt of such articles of alcoholic beverages, report the receipt or purchase of said alcoholic beverages to the Board, giving the date of purchase or receipt, the name of person or firm from who purchased or received, and a list describing the articles of alcoholic beverages so purchased or received. This report must be made by registered mail, or in person. Any person, firm, corporation, club or association of persons who fails and/or refuses to make the report as required in this subsection, shall be guilty of a misdemeanor and upon conviction shall be fined not less than Five ($5.00) Dollars, nor more than One Hundred ($100.00) Dollars, *Page 207 or imprisoned not to exceed thirty days for each offense."
Under the provisions of above quoted section the accused, as will be noted, had three days after receipt of the alcoholic liquor in question, to comply with the requirements provided for in said section. Said alcoholic beverage was in no sense illegal or contraband. The evidence showed it was legally purchased, hence legally possessed, at the time and place of the arrest of appellant. The prosecution of this appellant therefore was premature, and improvidently begun. These undisputed facts appearing on the trial of this case, entitled the defendant to his discharge, and by every possible means appellant, by his able counsel, urged the court to so hold. The adverse rulings of the court in this connection were erroneous in each instance and necessitates a reversal of the judgment of conviction from which this appeal was taken. It is so ordered. And as no conviction can be had in this case, as hereinabove stated, a judgment is here rendered in favor of the defendant discharging him from further custody in this proceeding.
Reversed and rendered.