This is a bill by the state to condemn as a contraband one Hanson automobile seized by an officer of the law as having been used for the illegal transportation of prohibited liquors. Acts 1919, p. 13, § 13.
The statement of the case will present a summary of substantially all the evidence offered upon the trial of the cause, and it is not our purpose to enter into a detailed discussion thereof.
The finding by the officer of the quart bottle containing a small quantity of whisky is not controverted, but defendant insists that its presence there was without his knowledge, agency, or consent, and, further, that its presence could not have been anticipated by the exercise of reasonable diligence. The bottle was found with the pistol and hat, all of which were covered with mud, and it is without dispute that none of these articles belonged to the defendant. The only way he could account for their presence was that on his return from Raymond he had discovered Vanderburg, whom he had known for a long time, by the roadside, in such a drunken condition as scarcely to be able to travel, being constantly up and down in the road, and recognizing him he stopped his car and took him in; Vanderburg getting on the back seat. When they reached Vanderburg's residence he was able to get out and go into the house alone. Defendant then went by for a friend who came to Bessemer with him, riding on the front seat with him. Neither of them knew of the presence of the liquor, the pistol, or hat lying in the bottom of the car near the footrest. They parked the car in front of the café in Bessemer, where there were lights, and knew nothing about these articles being in the car until notified by the police officer, who testified in the cause. The defendant stated that he saw no whisky on the person of Vanderburg, nor did the latter tell him he had any; as, indeed, Vanderburg was so drunk he said very little in an intelligent manner.
The rule is well established concerning the weight which will be given to the judgment of the trial court upon questions of fact when the witnesses testify orally, as in this case; and the holding of the trial court will not be disturbed unless the conclusion reached is palpably and plainly wrong. South. Ry. Co. v. Grady, 192 Ala. 515, 68 So. 346. But in the instant case the evidence is without material contradiction, either directly or inferentially. Bowling v. State, 204 Ala. 405,85 So. 500.
The testimony of the witnesses for the defendant bore upon the substantial merits of the case, and corroborated defendant's theory; and the very facts and circumstances surrounding the finding of the whisky with the mud-covered bottle and pistol and hat tend strongly to this corroboration, and all indications point to the truthfulness of defendant's story. Therefore, if the defendant is to be believed, he was but following the biblical example, acting the part of the Good Samaritan in taking up an acquaintance who had fallen by the wayside and carrying him to his home, without knowledge or notice of any suspicious circumstances to place him on notice that he was violating any statute of the state by transporting any prohibited liquors. Under such circumstances there is no rule of law established in this state which would condemn the kindly deed and declare contraband the car because used in its execution. If the defendant's theory be correct, and is to be believed, no judgment of condemnation should be entered. State v. Hughes, 203 Ala. 90, 82 So. 104; Bowling v. State, supra; One Packard Automobile v. State, 86 So. 21;1 One Five-Passenger Ford Automobile v. State, 203 Ala. 517,84 So. 760; Maples v. State, 203 Ala. 153, 82 So. 183; City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
The evidence in this case has been examined with painstaking care. It bears the earmarks *Page 288 of truth and candor, and all the circumstances in the case point to like effect. We have reached the conclusion that the judgment of condemnation was plainly wrong and should be set aside.
It therefore results that the judgment of the court below will be reversed, and one here rendered dismissing the bill.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
1 204 Ala. 435.