HARWOOD, Presiding Judge.
This appellant stands convicted of transporting prohibited alcoholic beverages in quantities of five gallons or more.
The sole question on this appeal is whether the evidence presented by the State as to the quantity of liquor was sufficient to support the verdict of guilty.
The liquor was in a container referred to by the State's witnesses as a five gallon G. I. can.
Sheriff James H. Collier testified that while he had not measured the contents of the present can, he had measured other five gallon G. I. cans exactly like the one involved in this case, and that they held five gallons; that the can in this case was full of moonshine liquor, even "up in the spout," and in his best judgment there was five gallons or better of liquor in it.
Deputy Sheriff Patterson testified that in his judgment there was a little over five gallons of whiskey in the can; that he had
The can and its contents were offered in evidence by the State. The court, upon objection by the defense, reserved its ruling.
The record shows that during the Solicitor's argument to the jury defense counsel objected to the Solicitor placing the can before the jury and referring to it.
The court stated he thought he had overruled the defense objection to the admission of the can into evidence. Upon the reporter finding no such ruling the court stated it was overruling the objection to the admission of the can and contents, and was reopening the case.
Upon objection by the defense to reopening the case, the court stated he would sustain the objection to reopening the case.
However, in this connection the record shows the following:
Under the court's statement, we think the can and its contents must be considered to all intent and purposes as evidence before the jury. Taylor v. State, 249 Ala. 130, 30 So.2d 256; Kabase v. State, 31 Ala.App. 77, 12 So.2d 758; Davis v. State, 35 Ala.App. 144, 44 So.2d 275.
The appellant relies for reversal upon Rungan v. State, 25 Ala.App. 287, 145 So. 171. In the Rungan case the evidence found by this court was to the effect that the beer was in a five gallon jug which
In the present case the witnesses for the State testified that they had measured other five gallon G. I. cans like the present cans, and "exactly like it," and that they had held five gallons; that the can in this case was full to the spout, and in their judgment contained over five gallons of liquor.
There is thus in this case evidence furnishing a basis for admeasurement tending to show that there was five gallons or more of liquor in the G. I. can. There was no such evidence in the Rungan case, supra. Furthermore, there is no showing in the Rungan case, supra, that the five gallon jug was before the jury.
The above differences in the evidence submitted in this case, and that in the Rungan case, supra, does not vitiate the doctrine of the Rungan case, supra, as to standard of proof required.