141 Ala. 90 | Ala. | 1904
Defendant was convicted under an indictment, the first count of which was drawn in accordance with the form prescribed by section 5077 of the Code which form has, by the terms of that section and decisions of this court been declared to be good “for
The evidence showed without dispute that defendant, in his store in East Florence, Lauderdale county, upon the receipt of one dollar from O’Brien, let the latter have a quart of brandy which he, defendant, had bought in Tuscumbia for and at the request of a third person; that he had paid for the brandy one dollar-which the third person had supplied for that purpose and that he gave to. that third person the dollar handed him by O’Brien. This evidence establishes that defendant sold the brandy, and whether he did so for the accommodation of O’Brien or for profit is immaterial. In the transaction he acted as the vendor and not as the agent of O’Brien, and, therefore, the doctrine which in Maples v. State, 130 Ala. 121, and other like cases cited in brief of counsel was applied in exoneration of persons acting as agents for the purchase of liquor, is not here applicable.
Act-of February 26, 1903 (Local Acts, 1903, p. 62), by its title and by . its sections 1 and 22 purports to prohibit the sale, giving away, or otherwise disposing of spiritous, vinous and malt liquors in Lauderdale county, otherwise than by a dispensary and a branch thereof provided for by other sections of the act, and said section 22 prescribes punishment to be imposed on any person selling, giving away or otherwise disposing of such liquors contrary to the provisions of the act. By section 29 of this act it is declared that “If said dispensary shall not be put in operation, be suspended, closed, or cease to be operated, either by action of said mayor and aldermen, and said court of county commissioners, or from any other cause, the prohibitive features of this act and the penalties herein provided shall remain in full force and effect. It being the intention of this act that the prohibition of the sale of- spirituous, vinous and malt liquors herein provided for shall not be in any manner dependent on the validity of the dispensary features, but shall only be
Sections 1 and 22 above referred to ;> re, independently of the dispensary features of the act, ‘apable of operating so as according to their purport to make it a penal offense to, in Lauderdale county, sell, ghe away, or otherwise dispose of liquors of the kind mentioned in any quantity except by a dispensary. That the legislature intended these parts of the act should so operate is made clear by its own declaration, made in said sección 29, and, therefore, in accordance with a settled rule of construction applied in Bradley v. State, 99 Ala. 177, and Powell v. State, supra, we hold they do so operate and are not affected by invalidity, if any exists, in other parts of the act. The question discussed in the brief for defendant as to the constitutionality of the dispensary provisions is not necessarily involved in this case and is not considered. The sale proved was violative of the above mentioned prohibitory part of the act in question and the judgment was not erroneous,
Affirmed,
