The sheriff of Talladega County arrested Evans on April 7, 1956, for possessing whiskey (Code 1940, T. 29, § 98), for which Evans was, on November 29, 1956, convicted by a jury in the Circuit Court, fined $300, to which the judge added six months at hard labor.
On the day of the arrest, the sheriff, Mr. John Robinson, after first getting a search warrant, went with several of his deputies to a house trailer located on a lot about three miles from Childersburg between the Coleman Bridge road and Bon Air: Robinson said Evans was living in the trailer. As the raiding party drove up, two men in a car backed out and left. The sheriff did not know them. Evans and Mrs. Margaret Nicholson were at the trailer: Robinson testified—"I think he was going in the trailer when I pulled into the yard." On being told of the warrant, both asked Robinson to come on in the trailer. No liquor was found there; nor in Evans' car, save for an empty half pint bottle which Robinson left in the car. The label bore the same brand as that of some found across the road.
The sheriff's testimony continued:
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The sheriff found a number of whiskey bottle labels (of the same brands as those found in the suitcase and pasteboard barrel) lying about the yard around the trailer. He put these in a paper sack and identified them on the witness stand. It had been raining before the raid—"it was rainy weather"—but the suitcase found across the road from the trailer yard was dry. Evans was not seen on the "side of the road around the whiskey." No witness ever saw Evans with his hands on any of the whiskey.
With the exception of the space where it crossed the public road, a trail—which led from the trailer to the caches—was "wore down," "a pretty nice trail." Prints of men's shoes stood out in the mud on the trail.
On cross-examination of Mr. John Henry Jones, a deputy sheriff, the following was brought out:
"Q. Do you know Mr. T. S. Thomas? A. Yes, sir.
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"Q. Did you know those men? A. No, sir, I didn't.
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"Q. And you took? A. Yes, sir. Him and his whiskey."
Evans argues but two assignments of error: First, as to the sufficiency of the evidence; second, as to Robinson's qualifications as an expert in fingerprint "lifting."
The evidence of Evans' fingerprints being on the bottles, if believed, is evidence of actual possession, though at an unspecified time and place. Hence, constructive possession cases, such as Grimes v. State, 38 Ala.App. 94, 76 So.2d 684, do not apply as to the possession by manucaption. Fingerprint testimony from an expert is competent; Leonard v. State, 18 Ala. App. 427, 93 So. 56, apparently assumes this proposition without requiring authority.
The "lifting" of fingerprints can be done by transposing the image of a print (made by powder insufflated or gently brushed on a suspected print) to a glass slide. Our view of the preparation of these glass slides (which were introduced in evidence) is that the work does not rise to that degree of art or skill requiring opinion evidence. Mr. Robinson told the jury step by step what he did to "lift" the prints, up to and including sending them registered mail to the State Toxicologist. Each step was understandable as a direct mechanical operation readily within the grasp of a schoolboy's mind.
To impute knowledge of the presence of liquor, we have consistently adhered to a high standard of proof in what are termed "constructive possession cases." This is because we are, in effect, saying, "The liquor was found in such a place that the defendant ought to have known of it being there," and thus we are making this conclusion serve as proof that he had the liquor in possession. Houston v. State, 38 Ala.App. 641, 93 So.2d 438.
Here we have a set of circumstances of constructive possession which do not exclude the hypothesis of innocence standing alone. However, when coupled with evidence of actual possession—as the jury could have inferred from the sheriff's testimony as to where he found Evans' fingerprints—there was a prima facie case and this holds even if the time and place of actual possession do not appear.
A prima facie case can exist side by side with the strongest of proof for a defendant. We, in reviewing for insufficiency of evidence, examine only to see that the gravamen of the offense is established by more than a mere scintilla; we review as a matter of law but can go no further in drawing deductions from the evidence, unless we consider there is some element showing deprivation of a fair trial. See Autry v. State, 34 Ala.App. 225, 38 So.2d 348; Stoppelli v. United States, 9 Cir., 183 F.2d 391, where fingerprint evidence sustained an inference (21 U.S.C. 174, 21 U.S.C.A. § 174) of possession of heroin.
We have reviewed the entire record, as required by law, and find it free of any substantial error.