McClure v. State

42 So. 813 | Ala. | 1907

ANDERSON, J.-

— The court below sustained the demurrers to the first and third counts of the indictment and overruled the one to the second count. The second count sufficiently charged a violation of the prohibition law for Jefferson county, and the demurrer thereto was properly overruled.—Guarreno v. State, post, 42 South. 833.

The state having elected to prosecute for the sale made to Johnson, the trial court committed error in permitting proof of other sales made by the defendant.—Cost v. State, 96 Ala. 60, 11 South. 435, and authorities there cited.

It is insisted by appellant’s counsel that defendant was entitled to the general charge, upon the ground that the sale was made at Wylam, and not Dolomite. There was no proof that Dolomite was within the prohibited district — that is, was not an incorporated town or city with police regulation day and night — and the defendant was entitled to the general charge, if properly requested. But as this case must be reversed, and anticipating that the state will, on the next trial, prove that Dolomite was within the prohibited district, we will dic-cuss the law with reference to the place of sale. Conceding the soundness of what was said in the case of Pilgreen v. State, 71 Ala. 368, “a sale of personal chattels in the possession of the seller is complete, and the title passes to the purchaser, when the parties agree upon the terms of sale, although the actual possession may not pass, and the purchaser may not be entitled to it, until he pays the price or performs some other stipulation.” On the other hand, “if by the terms of the contract the seller is required to deliver the goods to the buyer, tbe title and risk remain in tbe seller until tbe transportation is at an end or tbe goods are delivered in accordance with tbe contract, after which time tbe title is vested in tbe buyer.”—Capehart v. Furman Co., 103 Ala. 671, 16 South. 627, 49 Am. St. Rep. 60. Moreover, there was a delivery to tbe buyer’s agent, tbe express company, in tbe Pilgreen Case, supra. In tbe case at bar, tbe defendant testifies, “I received at Wylam an order from John Johnson at Dolomite ordering a quart of whisky to be delivered at Dolomite on pay day.” If this be true, the title to tbe whisky did not become vested in tbe seller until tbe delivery at Dolomite, and which was tbe place of sale.

Tbe charges asked by tbe defendant were so requested as to warrant a refusal by tbe trial court of all of them, unless tbe3r were all good.—Gregory v. State, 37 South. 259; Bell v. State, 140 Ala. 57, 37 South. 281; Verberg v. State, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17; Glover v. State, 40 Ala. 354. It is sufficient to say that charge 6 was bad.

For tbe error above pointed out, tbe judgment of tbe city court must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.