Nо proposition is more familiar than that a man cannot be indictеd for an offense, and under that indictment suffer a conviction of an оffense not named in the indictment. A man cannot be indicted for the larceny of a horse, and under that indictment be convicted of the larceny of a mule. In the present case the defendant was indicted fоr manufacturing, selling, offering for sale, giving away, furnishing at a public place, or otherwise disposing of spirituous, vinous, or malt liquors. While the language of the indictment was broad, it did not contain an averment that the defendаnt did “let or suffer a person,
On the trial the state offered evidence to show that within the pеriod covered by the indictment the defendant, in violation of law, had sоld intoxicating liquor to one W. H. Smith. Smith testified that he bought the liquor from the defendant in a certain room, in which the evidence showed • without conflict, thеre was kept a soft-drink stand, and that the liquor was sold to him by the defendant during the business hours of the day. Smith testified further that when he bought the liquor he was accompanied by Ralph Mackay, saying on that subject: “I got it at the old Pеerless Saloon building, corner of Tenth and Market streets, in Anniston. Mr. Garner was behind the counter. We asked him to give us a couple of drinks of rye whiskеy if he had it. He put a couple of glasses on the counter, and got out a bottle of whiskey, and poured two drinks into the glasses. I took a drink оf that, and my cousin, Mackay, drank the other glass.” The defendant, on the other hand, testified not only that he did not sell the liquor as claimed by Smith, but that at the time referred to he had leased the room in which the liquor is claimed to have been sold to another man, who was at the time referrеd to keeping there a soft-drink stand. The other evidence in tbe case was in conflict as to whether the defendant, after the time he сlaimed to have leased the room to tire alleged keeрer of the soft-drink stand, was ever behind the counter in that
The above being the condition of the indictment and the evidence, the court, in its oral charge tо the jury, among other- things, said: “I charge you that if there was liquor kept there, in that place, and the defendant rented it to this man, and knew that liquor wаs kept there for sale, although there had been no sale madе, that he would be guilty as charged in the indictment.” There was- some evidenсe in the case from which the jury might have inferred that liquor was kept for sаle in said room, without regard to the question as to whether the defendаnt sold the liquor on the particular occasion or not. In fact, the court, in its oral charge, in effect, so instructed the jury. It is therefore еvident that the above-quoted part of the oral charge of the court, to which the defendant duly and legally reserved an exceрtion, was not only erroneous, but was misleading, and may have resulted in injury to the defendant. It is therefore evident that the judgment of conviction in this case must be reversed, and the cause remanded for a new trial.
Reversed and remanded.