Arrington v. State

Jun 15, 1915
Versions:69 So. 385
13 Ala. App. 359
1915 Ala. App. LEXIS 70
BROWN, J.

(1) The indictment is in the form prescribed by the statute (Acts Sp. Sess. 1909, p. 90, § 29%), and charges that the defendant “sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors contrary to law,” etc., and is broad enough to cover the offense denounced by section 24 of the act above referred to, making it unlawful for any person to transport or deliver for another prohibited liquors.—Bush v. State, 12 Ala. App. 260, 67 South. 847; Bud Harrison v. State, infra, 69 South. 383; Whaley v. State, infra, 69 South. 384.

In Whaley v. State, supra, construing section 24 of the Acts of the Legislature, Sp. Sess. 1909, p. 86, we said: “It will be noted that this section defines four separate offenses: (1) That of accepting ‘prohibited liquors’ from another for shipment or delivery; (2) that of shipping ‘prohibited liquors for another’; (3) that of delivering prohibited liquors to another (one of the constituent elements of the above-enumerated offenses is that the prohibited liquors must have been received at one point, place, or locality in this state to be shipped or transported to or delivered to another person, firm, or corporation at another place or locality in this state) ; and (4) that of conveying or transporting over or along any public street or highway such prohibited liquors for another.”

(2, 3) The evidence adduced by the state shows without dispute that the agent of the Southern Express Company at Elba, Coffee county, delivered to the defendant 20 different shipments of liquors between January 14, 1914, and September 21, 1914, weighing in the aggregate 1,289 pounds, and containing about 107 gallons; that these liquors were shipped and billed to the defendant, and he received them from the agents of the Southern *361Express Company and receipted for each shipment. The defendant does not deny these facts, but testifies in his own behalf that several persons living in the community gave him money, to which he added some of his own, and that he ordered this liquor from Pensacola, Fla., and had it shipped to himself at Elba, Ala.; that he there received it and transported it from Elba, in Coffee county, to his home in the same county, and distributed it to each of the persons contributing to- the fund, keeping a portion for his own use.

The legal title to the liquor when it was received from the express company was in the defendant.—Pilgreen v. State, 71 Ala. 368. The transportation and delivery of the liquor to the other persons who contributed to the fund used in its purchase operated a' transfer of the title to the person to whom delivered, and was in the nature of a “sale.”—O’Brein, v. State, 3 Ala. App. 175, 57 South. 1028; Coker v. State, 91 Ala. 8 South. 874; 4 Words and Phrases, 3092.

The case of Vernon v. State, 161 Ala. 85, 50 South. 57, was not dealing with an offense under the Fuller Law, above referred to; in fact, the law Avas passed after the decision in that case was announced, and it has no application to the case here.

There is no conflict in the holding of this court in O’Brein v. State, supra, and Bush v. State, 12 Ala. App. 260, 67 South. 847. The O’Brein Case merely holds: “The statute does not undertake to give to such a use of the words in question the effect of describing or embracing a mere delivery of prohibited liquor by one person to another for no other purpose than its safe-keeping for the benefit of the person so temporarily parting with the possession of it.”

*362■ But it does not hold that, if such delivery is for the purpose of transferring to. another the property in the liquors with the right to consume them, this would not be within the act. It is manifest from the entire test of the act known. as the Fuller Law that its purpose is to make the form of indictment therein prescribed cover the offense denounced by section 24, and the fact that the act defines the words “otherwise disposes of” is evidence of the legislative purpose to give these words a broader meaning than had previously been given to them in the decisions of the courts.

Under the undisputed evidence in the case, the defendant, if the jury believed the evidence beyond a reasonable doubt, was guilty, and the affirmative charge with hypothesis was properly given.

Affirmed.