Espy v. State

Jan 15, 1872
Reporters:
Before:
Peters
PETERS, J.

1. The motion in arrest of judgment assails the sufficiency of the charge laid in the indictment. The indictment is sufficient. It follows the form laid down in the Revised Code. These forms have been repeatedly held sufficient by this court. — Rev. Code, p. 811, No. 30; Elam v. The State, 25 Ala. 53; Gabriel v. The State, 40 Ala. 357. The motion in arrest of judgment was, therefore, properly overruled.

2. It is quite obvious that the charge given by the court, *538ex mero motn, is a charge upon the effect of the evidence. It was given without being “ required to do so by one of the parties.” — Rev. Code, § 2678. This is error — Edgar v. The State, 43 Ala. 312.

3. It is also very evident that the law under which this indictment is presented was not intended to prevent the sale of spirituoris, vinous or malt liquors, but onfy to raise a revenue from their sale when engaged in or carried on as a “business.” — Pamph. Acts 1868, p. 329, § 105; ib. p. 330, § 112; ib. p. 331, cl. 4; ib. p. 332, cl. 5. The construction given to this statute in the case of Carter v. The State, 44 Ala. 29, and in Johnson v. The State, 44 Ala. 414, is not so narrow as that given by the learned judge in the charge above set forth. The offense here charged is a misdemeanor. — Rev. Code, §§ 3541, 3542; Pamph. Acts 1868, p. 330, § 111. The limitation of prosecution for misdemeanors is twelve months next after the commission of the offense. — Rev. Code, § 3952. Then, the time covered by the indictment is twelve months next before the date of its presentment to the court. To sell whisky on a “few several occasions ” within a period of trvelve months, could not bo justly esteemed the being engaged in or carrying on of the business of a wholesale dealer in the business of selling whisky. The proof does not show that it was the purpose of the accused to engage in the business of a wholesale dealer of spirituous liquors in the sense of the statute. Yet this was one of the facts necessary to be shown, before he could have been convicted. To do a thing on a “few several occasions” within twelve months, without any proof that the acts were consecutively done, is not sufficient to prove a habit. There is no proof of habit in the evidence, except the number of times the whisky is sold. These sales might have been spread out over a period which could have raised no just presumption of that frequency necessary to create a habit. The charge of the court, then, was faulty in being broader than the evidence. Such charges separate themselves from the evidence, by extending beyond it, and giving it a force not justly due to it. A merchant who keeps a variety store, and sells such *539articles, of all kinds, as Ms neighbors need, conld hardly be denominated, in any strictness of language, a wholesale dealer in spirituous liquors, because he sells, during a twelve months, several quarts or gallons of whisky to his customers, which are not drank upon, or near the premises. The gains thus derived are not freed from taxation. They are subject to be taxed‘as the profits and income on his other wares. — Pamph. Acts 1868, p. 305, § 13. The proof is, that the sales were never less than a quart, and the whisky was not permitted to be drank on the premises, or about them. This, then, did not make the vendor a retailer under the Revised Code. — Rev. Code, § 2618, and cases there cited. The statute is not intended to cut off all trade with a country merchant in spirituous liquors for domestic purposes, nor to forbid the people to use spirits for domestic purposes, but to impose a tax, by way of license, on the sale of such articles, for purposes of revenue, when the sale as “a business” was engaged in and carried on in a particular way. It is not a proMbitory liquor law, nor intended to operate as such, nor to compel all vendors of spirits to pay for and take out a license, but only those of a particular character. This distinction would not have been made, had it been the purpose of the legislature to include all. Where there is a specific enumeration, those not mentioned are intended to be excluded. This is the construction adhered to in Carter v. The State, 44 Ala. 29, supra. The charge of the learned judge was too broad, and was calculated to mislead the jury. His substitution of the word habit for the • word business, is scarcely legitimate. If doing a thing once or twice is not illegal when so done, its repetition can not make it illegal, unless the law forbids the repetition and the habit thus created. Before the vendor can be made guilty under this statute, the selling must be done with the purpose of carrying it on as a business. When this is the purpose, the quantity sold makes no difference as to guilt, but only as to the grade of guilt and the quantum of the punishment.

Under this construction of the statute, both the charges asked by defendant below should have been given.

*540The conviction and judgment of the court below are reversed and the cause remanded, and the defendant, said Seaborn Espy, will be held to answer the charge against him until discharged by due course of law.