The indictment is in the Code form, and is not subject to the demurrer. There are many exceptions to the various rulings of the court upon questions of evidence, but, as we view this case, it will not be necessary to pass upon them separately.
In order to prove the corpus delicti in a case under this statute (Code 1907, § 7329), there must be evidence not only of a theft of the goods, but a buying, receiving, or concealing of such stolen goods, with a knowledge that they have been stolen, and not having the intent to restore them to the owner. It is a rule so well settled as not to require citation of authority that before a defendant can legally be convicted of crime the state must prove every material ingredient of the offense beyond a reasonable doubt, and before a jury would be warranted in returning a verdict of guilty, there must be such proof as to convince them beyond a reasonable doubt as to every material ingredient of the offense charged.
The defendant was a member of a partnership in Birmingham, engaged in the business of buying and selling junk (including brass). The Southern Railway had some brass, called journal brasses, stolen from its wareroom in Birmingham in November, 1916. Shortly after the theft these brasses, or brasses of a similar kind, were found in barrels with other junk in the storehouse of the firm of which the defendant was a member. These barrels were found in the middle of the storehouse, about 80 feet from the street with a bag fastened over each barrel, as if they had just been shipped in or were being shipped out. There was no evidence that the defendant had ever seen in the barrels or ever had seen the barrels, or that the brasses had been bought as such by the firm. It was in evidence without dispute that the defendant attended to the office work of the firm and managed the financing of the business, which was a large business, covering purchases from several states; that the other partner did the buying, and a clerk received, classed, and checked all goods purchased, and that the clerk received the barrels in which these brasses were found; that they were shipped to the firm from Atlanta, Ga., and Tallahassee, Fla. The bills of lading and invoices were introduced describing shipments which included barrels of brass, and it was testified to, and not denied, that the defendant never in fact saw the barrels in which the brasses were, and never knew that in the barrels there were brasses of the description of the brasses set out in the indictment. The defendant proved a good character, which was not denied.
The humane provision of the law is that every man is presumed to be innocent until his guilt is established by proof, and while the possession of stolen property, 'having certain marks indicating ownership or being of such a character and description as would indicate an unlawful possession, might be sufficient to warrant a jury in finding that he obtained it with a guilty knowledge, until it has been shown by competent evidence that he knew these things, he cannot be convicted of knowingly receiving or buying. Facts from which notice would be presumed are not sufficient. Knowledge brought home to the defendant is required before a conviction can be had. The guilty knowledge is the material ingredient of the offense. Gassenheimer v. State, 52 Ala. 313-319. There is no evidence offered by the state tending to prove the scienter, other than the fact that the defendant was a partner in the business, having charge of the office, and that the stolen property, inclosed in barrels, with other junk of a similar character, was found in the storehouse of the firm, which was engaged in buying similar junk in larger quantities from all over three or four states. "Rumors and suspicions may be born of such facts and depend on such inferences, but not the verdict of a jury, which is to stamp dishonor and guilt on the citizen." Gassenheimer's Case, supra. What we have tried to make plain is aptly expressed in the text in 17 R. C. L. p. 73, § 77. "To warrant an inference of guilt, it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused." The same principle is held in People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55; State v. Drew, 179 Mo. 315, 78 S.W. 594, 101 Am. St. Rep. 474. Assuming that the articles found were stolen and were the articles set out in the indictment, the finding of them on the premises of the firm of which defendant was a member, in a place to which many others had free access, without proof of the actual conscious possession of the defendant, discloses only a prima facie constructive possession, and is not such a possession as will justify an inference of guilt by reason thereof. 17 R. C. L. P. 73, § 77.
In addition to the other evidence hereinbefore alluded to, the defendant proved a good character, which in a case of this nature is of vital importance, an evidentiary fact which the law recognizes and stands as a monument for his protection against suspicion which might otherwise be overwhelming.
In passing upon a request by the defendant for the giving of the affirmative charge, the court must consider the entire evidence, both *Page 524 for the state and for the defendant, and if the evidence is without conflict, it becomes a question for the court. The defendant in this case was entitled to the general affirmative charge, and the trial court erred in refusing to give it as requested. It is but fair to say that in the foregoing conclusion the Attorney General concurs. This being conclusive of the case, it is not necessary to pass upon the other questions presented by the record.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.