Gilmore v. State

125 Ala. 59 | Ala. | 1899

HARALSON, J.

1. The demurrer to the indictment is not set out in the transcript; but defendant’s counsel, in his assignment of errors states, that it was to the 2d and 3d counts, and on the ground that there was no statute prohibiting the acts charged therein. In this the counsel seems to have been inadvertent. The legislature "had adopted an act, “To prevent the sale, giving away, or delivering, or otherwise disposing of any spirituous, vinous or malt liquors, intoxicating bitters or any other intoxicating drinks at or within the localities in this State hereinafter designated, to-wit” (describing them). Among the number of designated places was any place within three miles of Vernon Methodist Church in the county of Lamar. The act itself contains the prohibition as to this church, as it is mentioned in the caption. The penalty prescribed in the act against anv person violating its provisions is, a fine on conviction of not less than $30'nor more than $100, and. he may be sentenced also to hard labor for the county for not more than three months. — Acts, 1884-85, p. 570.

Counts 2 and 3 appear to be well within the provisions of the special statute, sufficiently referred to in the indictment, and we fail to see that they were subject to demurrer. — Black on Int. Liquors, §§ 450, 476; Block v. The State, 66 Ala. 493.

2. It is insisted, that said act of the legislature urns repealed by a later one, “To amend, ratify, and confirm the charter of the town of Vernon, in Lamar county,” approved February 2d, 1899. — Local Acts, 1898-99, p. 519. Section 4 of that act provides, (sub-divisions 28, 29, 30 and 31), that the mayor and councilmen shall have the following powers, — to license, regulate and restrain the «selling or giving away of any spirituous, vinous or malt liquors within the corporate limits of the town; to revoke all licenses; to close houses and places for the sale of intoxicating liquors, when the public peace and safety may require it; to forbid and punish the selling or giving away of any spirituous, vinous or malt liquors to any minor, habitual drunkard, or person of feeble mind; and the last section provides, that all laws in conflict with the act are repealed.

It is a familiar principle, that “the repeal of statutes by implication is not favored, and is never allowed, when a reasonable field of operation can, by any just or fair construction, be found for each statute; but Avhen there is a manifest repugnancy between the two statutes, or when the later shows a clear legislative intention that it shall be the only rule governing in reference to the particular matter, it necessarily repeals the former statute.” — Parker v. Hubbard, 64 Ala. 203; Riggs v. Brewer, Ib. 283; Iverson v. State, 52 Ala. 170; Camp v. State, 27 Ala. 53.

If the powers conferred by the charter on the municipal authorities of the town of Vernon, to license and regulate the sale of intoxicants, were never exercised by them, but lay dormant, there exists no reason why (be special act under which defendant was indicted, should not continue to have operative effect, at least till suck time, if ever, when these authorities may by proper ordinance proceed to carry into effect these charter powers. Thus construed, a reasonable, field of operation is given to both the acts. — Olmstead v. Crook, 89 Ala. 228; Ex parte Mayor and Council of Anniston, 90 Ala. 516.

3. That the party to whom the liquor is said to have been sold, bought it, and that the transaction was a sale, can not be disputed. He paid money, and got the whiskey in return for it. The fact that defendant did not own the whiskey and received no part of the money-paid for it, constituted no defense, nor did it require any specific intent to violate the statute. No other intent was necesr sary than the act of delivering the liquor by defendant to the purchaser itself imports. The law was broken When this act was voluntarily done. Whoever aids, or abets, counsels or procures the sale, giving away or delivering of intoxicating liquors, may be indicted as a principal in the transaction under this special statute. Black on Intox. liquors, § 380; Baine v. State, 61 Ala. 75; Hill v. State, 62 Ala. 168; Cogle v. State, 87 Ala. 38.

The special statute was read in evidence; its sale, defendant’s agency in aiding and procuring it to be consummated, and that it took place within 300 yards of the church, were all proven without- conflict in the evidence, and the general charge for the State as requested was properly given.

Affirmed,