84 Ala. 449 | Ala. | 1887
1. The indictment ivas in the form prescribed by section 4037 of the Code (188(5), which constituted section 480(5 of the Code of 1876, and by the express terms of the statute itself is made sufficient to cover “all violations of special and local laws, regulating the sale of spirituous liquors within the place specified.” — Powell v. State, 60 Ala. 10; Boon v. State, Ib. 226.
2. If the defendant was a druggist, or physician, and laAvfully disposed of wine or liquors under the restrictions alloAved in sections 2 and 3 of the act approved February 28, 1881 (Acts 1880-81, p. 1(57-168), he should haAre set this fact up as a matter of defense. These particular cases were in the nature of provisos, rather than of exceptions incorporated in the enacting clause, and 'it, therefore, was unnecessary for the -indictment to negative them by averring, in advance,, that the defendant did not come within the operation of these excepted cases . — Carson v. State, 69 Ala. 235; Britton v. State, 77 Ala. 202.
3. If the last proviso of the act, contained in section 4, Avhich permitted any citizen of Alabama to sell domestic wine, was void as an unconstitutional discrimination against the citizens of other States, under the authority of McCreary v. State, 73 Ala. 480, we should hold the remainder of the act to continue in full force and effect. — See, also, Powell v. State, 69 Ala. 10; and Tiernan v. Rinker, 102 U. S. 123.
We discover no error in the record, and the judgment must be affirmed.
