42 So. 833 | Ala. | 1906
Whether the state relied for conviction on proof of a sale in violation of the general law (section 5076 of the Code of 1896), or proof of a sale in violation of a special or local prohibition law, there can be no donbt of the sufficiency of the first count in the indictment. Evidence to support a conviction, however, under this count should be confined to a sale. — Powel’s Case, 69 Ala. 10; Boon’s Case, Id. 226; Olmstead’s Case, 89 Ala. 16, 7 South. 775; Williams’ Case, 91 Ala. 14, 8 South. 668; Compton’s Case, 95 Ala. 25, 11 South. 69; Code 1896, § 5077.
The words, “within the place specified,” found in the latter part of section 5077, clo not mean that the place shall be specified in the indictment, but they refer to the place specified in the special or local law. The demurrer to the first count was properly overruled.
Manifestly, the second count of the indictment was framed with respect to the local prohibition law applicable to Jefferson county, approved on the 16th day of February, 1889, and which penalizes the sale, giving away, or otherwise disposing of spirituous, vinous, or malt liquors, intoxicating bitters, or cordials, or fruits preserved in alcoholic liquors, in Jefferson county, except in towns or cities having police regulations both day and night. — Acts 1888-89, p. 417. The count follows the words of the statute, except that it does not in so many words negative the fact that the violations alleged were not in a town or city having police regulations both day and night; and on this account a demurrer was filed to the count. We are aware of the rule that, if there be an exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant does not come within the exception.—Clark’s Gase, 19 Ala. 552. But the averment in the count to the effect that the sale, giving away, or otherwise disposing of the liquors named in the indictment was without a license and contrary to law is the equivalent of the negative averment referred to.—Tarkin’s Gase, 108 Ala. 17, 19 South, 24.
The sale of the liquor was made by the wife of the defendant at the store of the defendant. It was necessary to connect the defendant with the sale. Frequency of such sales by the wife at the store might authorize the inference that the liquor was kept by the defendant and that in making the sales the wife was acting as his agent. We do not think a case was presented on the evidence for an election by the state.— McIntosh’s Case, 140 Ala. 137, 37 South. 223; Untreiner’s Case, 146 Ala. 133, 41 South. 170. The court committed no error in its rulings on the admissibility of evidence.
The fact that a bottle of beer purchased by the state’s witness was carried by him into the grand jury room, and that one of the grand jurors tasted it to determine whether or not it was lager beer, cannot have the effect of destroying the validity of the indictment.
We cannot say that the evidence does not warrant the conclusion of guilt on the part of the defendant beyond a reasonable doubt, and, therefore, disturb the finding of the court.
There is no error in the record, and the judgment of conviction is affirmed.
Affirmed.
