Grant v. State

73 Ala. 13 | Ala. | 1882

SOMERVILLE, J.

— The statute requires a license to be taken out, by January 15th of each year, by all persons who engage in or carry on the business of distilling -liquors in this State, unless such liquors be distilled from fruits. — Code (1876), §§ 490, 494, subd. 5. A violation of this law is made a misdemeanor, punishable by a fine three times the amount of the State license. — Code, § 4274.

It has been many times decided by this court, that “ the doing of a single act pertaining to a particular business will not be considered engaging in, or carrying on the business, yeta series of such'acts' would be so considered.” — Weil v. The State, 52 Ala, 19; Martin v. The State, 59 Ala. 34.

To “engage in, or carry on any business,”'within the meaning of this-statutory provision, is to pursue any occupation or employment “for a profit, or as a means of livelihood.” 'Whether it'is one’s sole business, or is auxiliary to some other vocation, is entirely immaterial. The important inquiry is the intent of the party, which, under proper instructions from the court, must generally be a question for the determination of the jury. — Harris v. The State, 50 Ala. 127; Weil's case, 52 Ala. 19; Clark’s Or. Dig. § 778; Clark’s Or. Law, § 1219.

The evidence shows that the defendant was seen to be engaged “ three or four, or five different times,” in the act of distilling rum — a species of spirituons liquor — by a sort of rude process. That his appliances used for this purpose were unscientific, and even ill adapted to the end in question, is not material, except as illustrative of a stronger or weaker probability of illegal intent. If the mere imperfection of the machinery used in violating the law should he adjudged an excuse for crime, a premium would be placed upon artifice, and few offenders could ever be brought to justice in the courts of the country. The material used was not fruit, which is the sole article authorized by the statute to be used for distilling purposes. The .defendant is shown to have distilled the rum from the refuse syrup obtained from boiling sugar cane, which is no exception to-the statutory prohibition.. TÍiese acts on the part of the defendant were l.egal or illegal according to the intent with which they were done. They were sufficiently frequent to authorize the jury to infer that the defendant was engaging in, or carrying on the business of distilling spirituous liquors from other material than fruit. If this was done with the intent-ion of making a livelihood or of reaping a profit, it was a violation of the statute under consideration.

The charges asked were properly refused, because they withdrew' from the jury all consideration of the question of' intention.

Affirmed.