44 Ala. 414 | Ala. | 1870
The indictment charged that the defendant “ did distill vinous or spirituous liquors without license, and contrary to law.” The offense is, engaging in, or carrying on, a business for which a license is required, without first obtaining the license. — Acts 1868, p. 330, § ill. When a new offense, unknown to the common law, is created by statute, its constituents, if specified in the act,'must be embodied in the charge. — Eubanks v. The State, 17 Ala. 181. The indictment failed to charge an offense.
The second and third charges asked by the defendant, and given, correctly express the law of the case. A distiller is one whose occupation is to extract spirit by distillation. — (Web. Die.) To constitute occupation some time is a necessary ingredient. It need not be protracted, but must not be momentary. The intention must govern, and must be ascertained by the jury. If the profit i§ the inducement, a very little time will suffice,
The judgment is reversed and the cause remanded.