94 Ala. 91 | Ala. | 1891
— The ground of demurrer to the indictment is •evidently founded on the phraseology of section 4038 of the Code, without observance of, or reference to its amendment by the act of February 18, 1891. By the amendatory act, the words or guardian” are omitted, leaving the statute as amended to read, “without the consent of the parent, or person having the management or control of such minor.” — Acts 1890-1, p. 1209. The indictment negatives the consent in the language of the amending act. But, without the negativing •clause, the indictment would have been sufficient. The form of an indictment for selling or giving liquor to a minor, as laid down in the Code, contains no such negative averment; and an indictment conforming to that form has been held to be sufficient. — Spigener v. State, 62 Ala. 383; Tatum v. State, 63 Ala. 147.
In the general charge the court instructed the jury, ex mero motn, “that the fact of the witness, Noble, having been doing-business on his own áccount, or for the Anniston Ice Company, is not sufficient alone to show that he was twenty-one years old, but may be considered along with the other testimony as a circumstance tending to show whether defendant believed, at the time of the sale, that witness was twenty-one years old.” The charge, when considered as an entirety, and construed in reference to the testimony, is not a charge upon the effect of the evidence in the meaning- of section 2754 of'the Code. The facts that Noble, the person to whom the liquor was sold, was superintendent and general manager of the ice company, and had often, as such, made contracts with the defendant, were admissible, not for the purpose of showing that he was an adult, but to enable the jury to determine whether or not the defendant honestly believed that Noble was twenty-one years old, which, if true, though mistaken, would render the' act of selling excusable. The charge merely limits the operation of the evidence to the purpose for which it was admissible.
Neither is there error in refusing to charge t-he jury, “that
Neither is there error in the refusal to charge the jury, that they are not to infer that whiskey is a spirituous, vinous or malt liquor, unless it be proved by the evidence. That whiskey is a spirituous liquor, is within the common knowledge of all men. The courts will take judicial notice of what every body is presumed to know, and juries are permitted to find such fact, without specific proof being adduced in its support. Wall v. State, 78 Ala. 417; Adler v. State, 55 Ala. 16.
Affirmed.
■ The opinion in this case was prepared by the late Judge Olorton, and was handed down by the court on the 25th February, 1892, a few weeks after his death.