135 Ala. 61 | Ala. | 1902
By an act approved February 24,1881, it is made a misdemeanor “for any person to distill, brew, or manufacture, or sell, give away, or oilier wise dispose of, any vinous, spirituous, malt or other intoxicating decoction,” etc., Avitliin the limits of Clarke county. Under provisos in the act exceptions from the prohibition are, made in favor of the use of Avine for sacramental, social and domestic purposes and the use of liquors • under certain conditions by physicians. This indictment charges that the defendant “did unlawfully sell, give aivay, or otherAvise dispose of spirituous, vinous, malt or other intoxicating liquors Avithin the limits of Clarke county, against the peace and dignity of the State of Alabama.” In the absence of a.ny conjunctive Avord between the verbs “sell” and “give away” the natural construction of this sentence makes the Avord “un-laAvfully” apply to every act imputed to the defendant and repels the construction contended for in appellant’s brief where it is urged that the disposition of liquors charged alternately, is not sIioavu by the indictment to Inrve been unlawful. The permitted uses of liquors being enumerated in provisos and not in the prohibitory clause, are made to appear as' exceptional uses, and the rule governing in such case exempts the prosecution from the necessity of averring in the indictment that
Offenses under the act are of equal degree and are subject to the saíne punishment, hence under our statute it was permissible to charge either of the prohibited.acts in the same count of the indictment and in the alternative.—Code, § 4913. In form the indictment is not essentially different from that which was before this court in McClellan v. State, 118 Ala. 122, and which was held to be in compliance with the requirement of the statutes as indicated by Code form No. 79, and section 4913 of the Code. .The demurrer to the indictment was properly overruled. No error is found in the record.
Affirmed.