Holland v. State 21 Ala. App. 520, 109 So. 885

SAMFORD, J.

The evidence in this case tends to show the possession of prohibited liquors at several different places at or near the place of residence of the defendant. The defendant in his brief insists that each of the places at which whisky was found was a separate offense, and that therefore evidence of one of these offenses excluded inquiry as to others. To sustain this we are cited to the cases of Joyner v. State, 16 Ala. App. 240, 77 So. 78; Ex parte Brooms v. State, 197 Ala. 419, 73 So. 35, and other cases of similiar import. These eases assert correct propositions of law, but are not applicable to the case at bar. If there was whisky in the smokehouse, some just below the house under a log, and a quart lying in the water under a tree, and • all of this was in defendant’s possession at the same time, there was only one possession, and evidence tending to prove this was admissible, and evidence having been admitted tending to prove this no election on the part of the state, was necessary. Collier v. State, 16 Ala. App. 425, 78 So. 419; Brannon v. State, 16 Ala. App. 259, 76 So. 991.

The remarks of the trial judge, made by him in connection with his ruling as to the admissibility of certain testimony, was upon objection of defendant withdrawn, and hence could not now be made the basis of reversible error. Bean v. State, 18 Ala. App. 281, 91 So. 499. The incident, as shown by the record, would not justify the granting of defendant’s motion to enter a verdict of not guilty, nor for the entering of a mistrial, nor for a withdrawal of the case from the jury and granting a continuance. The incident is *521sought to be magnified into prejudicial error. We do not tbink so.

’ The several rulings of the court on the admission of testimony and in refusing requested charges are examined, and found to be free from error.

We find no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing.

PER CURIAM.

Application for rehearing overruled.

BRICKEN, P. J.

(dissenting). The application for rehearing should be granted, and the judgment of conviction reversed, because of the erroneous rulings of the court (to which rulings exceptions .were taken) in allowing in evidence testimony to the effect that within nearly 300 feet of this defendant’s home the searching officers found four pints of rum or whisky in the water; and, at another place, but at approximately the same distance from appellant’s home, one quart of whisky was found, by the side of a log, in the water. There was no evidence even tending to show any connection with this whisky by the defendant. The evidence without conflict or dispute showed that it was found upon land over which defendant had no possession or control. This evidence was illegal and irrelevant, and appellant’s ease should not have been thus burdened. Its introduction in the case' was highly prejudicial to the substantial rights of appellant. The authorities . cited by appellant are clearly in point, and, as stated by his counsel in brief, in each of the cases cited the facts were much stronger against the defendant than the facts adduced against appellant. The opinion here is in direct conflict with the decisions cited. Guilford v. State, 20 Ala. App. 625, 104 So. 678; Mathews v. State (Ala. App.) 106 So. 889;1 Gardner v. State (Ala. App.) 106 So. 894;2 Bush v. State, 20 Ala. App. 486, 103 So. 91; Allen v. State, ante, p. 23, 104 So. 867.