43 So. 114 | Ala. | 1907
The indictment is in Code form, as provided by section 5077 of the Code of 1896, and under
It is insisted by the defendant (appellant) that, to authorize a conviction, it was incumbent on the state to show that the fluid sold contained an appreciable quantity of malt liquor, or that the malt was the predominant element; and Brantley’s Case, 91 Ala. 47, 8 South. 816, is cited and relied on in support of the contention. In that case the indictment was in the same form as the one here, and it was sought to secure a conviction under a local statute which prohibited the sale, giving away, or otherwise disposing of vinous, spirituous, or malt liquors, intoxicating bitters, or any other intoxicating drink, by proof of a sale of intoxicating bitters known as “Harter’s Wild Cherry Tonic,” or “Cherry Bitters”; and the court did hold that, in order to secure a conviction under the indictment, it was indispensable to show that the bitters sold contained an appreciable quantity of one of the classes of liquors specified in the indictment. This ruling is based upon the satisfactory reasoning that, as the form of the indictment is exclusive in respect to all liquors not mentioned therein, a conviction could not be sustained under it on proof of a sale of intoxicating bitters, unless such bitters contained an appreciable quantity of one of the classes of liquors specified in the indictment. — Allred’s Case, 89 Ala. 112, 8 South. 56. In Feibelman’s Case, 130 Ala. 122, 30 South. 384, the defendant was “indicted, tried, and con
The effect of the ruling in that case is that the sale of all malt liquor, whether containing sufficient quantity of malt to produce intoxication or not, or whether malt is the “predominant element” or not, may be prohibited by the Legislature. — Evan’s Case, 113 Ga. 749, 39 S. E. 318; State v. O’Connell, 99 Me. 61, 58 Atl. 59. There can be no doubt in the instant case that the evidence tended to show the fluid sold by the defendant was composed partly of malt, and herein the case differentiates from the Brantley Case, supra, and falls within the influence of the Feibelman Case, supra; and under the rule as .declared in Feibelman Case it is of no conser qnence that the fluid contained in the bottles sold to the state’s witness and labeled “Cook’s Malt Tonic” did not contain malt in sufficient quantity to produce intoxication, or that malt was not the predominant element in the fluid. If it was composed in part of malt liquor, the sale of it is inhibited by the act of the General Assembly of February, 1887, and the defendant might be convicted under the present indictment for selling it. We think, however, that the evidence as shown by the record, in respect to the fluid containing malt, is not so free from adverse inferences as authorized the court to give the affirmative charge in favor of the state or the, defendant. The question should have been submitted to the jury under appropriate instructions by the court. In giving the charge for the state, the court committed reversible error. There is no error in the refusal of the charge asked by defendant.
The judgment is reversed, and the cause remanded.