We were not unaware of the holding by the Supreme Court in the case of Ex Parte State ex rel. Attorney General (Harbin v. State), 210 Ala. 55, 97 So. 426. In fact, the form of expression used by us in our opinion on rehearing in this case was prompted by our desire to emphasize our conclusion that the holding in the said Harbin Case did not operate to relieve this appellant from the imputation of guilt — under his own testimony.
What we really wrote and decided was that appellant's own testimony showed his guilty connection with the small quantity of whisky, which was found, and we really said: "We donot think it appears that appellant merely took hold of the bottle of whiskey for the purpose of destroying it." In making the copies from our original manuscript, the word "not" was omitted — which of course changed our holding, inadvertently.
We are put to this method of correcting our opinion on rehearing, and we now make it *Page 336 clear that from the testimony which we set out in our said opinion on rehearing we do not think it appears that appellant merely took hold of the bottle of whisky for the purpose of destroying it.
Since the Supreme Court granted the writ of certiorari, and remanded the case to us for further treatment on their stated reason that our judgment of affirmance was erroneous because we "expressed the view that they (we) thought petitioner (appellant) merely took hold of the bottle of whiskey for the purpose of destroying it," and we have now corrected our said opinion on rehearing, we take it that it is proper to enter an order affirming the judgment of conviction. The same is affirmed.