Amos v. State, 73 Ala. 498

73 Ala. 498 | Ala. | 1883

BRICKELL, C. J.

— The indictment is founded upon the •statute (JPamph. Acts, 1880-81, p. 387), rendering it unlawful, •except upon the prescription of a practising physician, “to sell, give away, or otherwise dispose of spirituous, vinous or malt liquors,” within a designated locality in the county of Conecuh. The manifest purpose of the statute, taking the words in their •ordinary signification, is the prohibition of all dealing in the nature of trade or traffic, in the locality specified' — a prohibition ■of a transfer of such liquors in the mode such transfers had been made usually, and the prevention of all evasions of the prohibition. The effective words are sell, give away, or otherwise dispose of ¡ all of which, in a general sense, found in this •connection, signify some act by which one person parts with, to another, possession or ownership of property] A sale, ex vi termini, imports the transfer of personal property upon a valuable consideration; and a gift imports a like transfer gratuitously, or upon a merely good consideration. The more general words, or otherwise dispose of, following the more specific or particular words, sell, or give crnay, upon a settled rule of statutory construction, a larger legislative intention not being clearly expressed, must be construed as extending only to a disposition ■eyusdem generis with a sale or a gift; they are not to be extended to any and every act which may be said to be a disposition. The rule is, when general words follow, in a statute, words of particular and special meaning, if there be not a clear mauifes-; tation of a different legislative intent, they are construed as applicable to persons or things, or cases of like kind, as are designated by the particular words. The rule, it is said, “ accords with the ordinary workings of the human mind. A writer who enumerates certain things, adding a general clause, mentions, as of course, the highest things, and some of each •class, within those which he had in contemplation.” — Bishop’s Stat. Crimes, § 246 h. It would be a departure from the rule, not necessary to give effect to the legislative intent, and not within it, to give the general words, or otherwise dispose of, a meaning so loose and expansive as to include within them any •act not akin to a sale or a gift, not intended as, and not having in it any of the properties of, a parting with property by one person to another. A common carrier, transporting the enumerated liquors to the designated locality, and there delivering them to the consignee, or to the true owner, it may be said, in a large or loose sense, disposes of them. A warehouseman, with whom they were stored, delivering them on demand, could also be said to dispose of them ; and a destruction of them intentionally could be denominated a disposition ; and yet, ihese acts are not within the proper significance of the general words, nor are they within the objects and purposes of the statute.

The evidence tended to show that the liquor the defendant is charged with having disposed of in violation of the statute, was the property of the person to whom it was delivered; bought for him in Mobile by the father of the- defendant as an agent merely, and that,.as agent, the father had the custody of it; the defendant having no connection with it, and doing no other act than, on the request of the owner, to deliver to him a part of it, because it was not convenient at that' time to takeaway the whole. If this be the real state of facts, and whether it be or not, it is the province of the jury to ascertain, there is no ground to charge the defendant with a violation of the statute; he has done no act offensive to it. It may be possible that there was not a purchase of the liquor by Bethea; that he had no ownership of it; that the introduction of his name as a purchaser was a mere device, and that, in fact, the real transaction was a sale by the father of the defendant to Bethea. If this be true, and, to consummate the sale, acting for his father, the defendant made delivery of the whiskey, then he would be guilty of a violation of the statute. An agent or servant is not excused from liability for an infraction of the criminal law, because the act may be done in the course and duty of his agency or servitude. — State v. Bell, 5 Port. 365; Winter v. State, 30 Ala. 22. But this hypothesis, if it be reasonable, is merely inferential from the transaction, and whether it is fairly and reasonably inferential, the jury alone can determine.

A general instruction to the jury, that if they believe the evidence, they ought to find the defendant guilty, .is, to say the least, of doubtful propriety in all criminal cases. And if it is questioned, on error it can not be supported, rmless the evidence is clear and conclusive, and without conflict, in its character, leaving no inference of fact to be drawn by the jury. Carter v. State, 44 Ala. 29; Crawford v. State, Ib. 45; Perkins v. State, 50 Ala. 154; Foster v. State, 47 Ala. 643; Weil v. State, 52 Ala. 19; Sanders v. State, 58 Ala. 371. The court below erred in the charge given to the jury, and in the refusal of the charges requested.

We pass the remaining question raised by the bill of exceptions, remarking only, that the Constitution guarantees to the person accused of'crime the right to be heard by counsel; thus constituting the counsel an important element in the judicial investigation. Upon questions of law, which the court alone can decide, it may be, when the opinion of the judge is formed and fixed, that he may, in the exercise of a sound judicial discretion, decline to hear argument from counsel, ilut the discretion should be exercised sparingly and cautiously, and only when the question seems so clear as not to admit of argument.'

Let the judgment be reversed, and the cause remanded. The defendant must remain in custody until discharged by due course of law.