Maxwell v. State

140 Ala. 131 | Ala. | 1903

TYSON, J.

To constitute the offense for which the defendant was convicted, the fact must be established by the eAddence that he parted with, to another, the possession or ownership of the whiskey. If defendant had not possession of it, nor owned it, Ms delivering it to tbe witness for the prosecution ivas wrongful as against the owner of it, and constituted neither a sale, gift nor disposition of it.

In Amos t>. State, 73 Ala. 501,. speaking to this question this court said: “The effective words are sell, give away, or othemoise dispose of; all of which in a general sense, found in this connection, signify some act by which one person parts with, to another, possession or ownership of property. A sale, ex vi termini, imports tlie transfer of personal property upon a valuable consideration; and a gift imports a like transfer gratuitously, or upon a merely good consideration. The more general words, or othemoise dispose of, following the more specific or particular words, sell, or give aioay, upon a settled rule of statutory construction, a large legislative intention not being clearly expressed, must be construed as extending only to a disposition ejusdem generis with a sale or a gift; they are not to be extended to any and every act which may be said to be a disposition. * * It would be a departure from the rule, not necessary to give effect to the legislative intent, and not within it, to give the general words, or otherwise dispose of, a meaning so loose and expansive as to include within them any act not akin to a sale or gift, not intended as, and not having in it any of the properties of, a parting with property by one person to another.”

Under these principles, the only possible theory upon which the conviction in this case can be sustained, is to find from the evidence that defendant was acting as the agent of his father in delivering the whiskey, and that he had authority from him, either expressed or implied, to part with it to Harmon.

Upon a consideration of all the evidence our conclusion is that it simply establishes the fact that the defendant, in getting and delivering the whiskey, was.not acting for his father at all, but for Harmon. The case, therefore, belongs to that class of cases where the defendant acted only as the agent or friend of the purchaser in procuring the whiskev. Tn nil such cases it has been uniformly held bv this court that conviction cannot be had.-Bonds v. State, 130 Ala. 117.

In conclusion, it may be well to note that this case was tried by the judge without a jury, under the act declaring the powers and jurisdiction of the city court of Anniston; and that under that act his conclusion and judgment on the evidence are made reviewable by this court.—Acts, 1896-97, p. 324.

The judgment of conviction will be reversed, and one will be here entered discharging the defendant.

Reversed and rendered.