Mills v. State, 42 So. 816

Mills v. State

42 So. 816 | Ala. | 1906

DENSON, J.

— The indictment contains three counts, the second and third of which are in Code form (form. *63684), for a violation of section 5087 of the Code of 1896, which provides that “any person, who, within the limits of any district in which the sale of spirituous', vinous, or malt liquors are prohibited by law, solicits or receives any order for spirituous, vinous or malt liquors in any quantity to be shipped or sent into such district, must, on conviction, be fined not less than twenty, nor more than one hundred dollars.” It is evident that the third is the only count on which conviction was insisted upon.

It is not necessary, to warrant a conviction under the statute, that it be shown that the defendant is engaged in the business of soliciting or receiving orders for liquor. The statute is a police regulation, and one act will constitute a violation of it.

We have no hesitancy in holding that if the evidence of the state’s witness was worthy of belief, and if the jury believed it beyond a reasonable doubt (and manifestly they did), it was sufficient to base a verdict of guilt upon. Therefore the defendant was not entitled to the affirmative charge (No. 3), which was requested by him and refused by the court; and, not being entitled to this charge, the court cannot be put in error in respect to any of the five charges refused to the defendant, even if it should be conceded any of them are good, as the bill of exceptions shows they were requested in bulk.— Verberg’s Case, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17.

The first charge given at the request of -the state has been many times approved by this court.

It is urged in the brief of counsel for the appellant that charge 2 given for the state referred a question of law to the jury. It is apparent that the contestation was whether the defendant received an order; and it is further apparent that it was for the court to determine what, within the meaning of the law, would constitute the receiving of an order by the defendant, and the effect of charge 2 given for the state was to refer this legal question to the jury. We are constrained to sustain the insistence of the appellant and hold that the giving of charge 2 is reversible error.— Jones’ Case, 79 Ala. *63723; Riley v. Riley, 36 Ala. 496; Wright v. Bolling, 27 Ala. 259; Chambers v. Morris, 42 South. 549; 2 Mayfield’s Dig. (28) p. 577.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur. ■