58 So. 775 | Ala. Ct. App. | 1912
The complaint in this case sufficiently averred the existence of a, municipal ordinance under which either of the acts with which the defendant was plainly charged in the alternative constituted an offense against the municipality; and it was not subject to the demurrer interposed to it.—Bell v. Jonesboro, 3 Ala. App. 652, 57 South. 139; Turner v. Town of Lineville, 2 Ala. App. 454, 56 South. 602; Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742.
But the ordinance offered in evidence did not correspond with the averments of the affidavit or complaint as to its nature or import. The charge as made imported the existence of a law or ordinance of the city of Enterprise under which either a sale, an exchange, or other disposition of spirituous, vinous, or malt liquors Avere prohibited. The only ordinance offered in evidence was cne enacted in the year 1903, which was in the following Avords: “Any person Avho shall engage in or carry on the business of a retail liquor dealer or who shall sell by retail any spirituous, vinous or malt liquors, or other in-, toxi eating drinks, Avithout first having taken out a license. must, on conviction, be fined not less than ten or more than one hundred dollars.” This ordinance did not prohibit a disposition of such liquors otherwise than by a sale, or in the Avay of engaging in or carrying on the business of a retail dealer in them, without a license. It did not prohibit the giving away of such liquors, for instance.—Williams v. State, 91 Ala. 14, 8 South. 668; 23 Cyc. 181. It did not evidence the existence of such a municipal law as was charged by the complaint or affidavit to have been violated by the defendant by his either selling, exchanging, or otherwise disposing of spirituous, vinous, or malt liquors. The defendant’s objection to its introduction in evidence, on the ground, among others, that the affidavit did not charge the de
Neversed and remanded.
