Smith v. State

22 Ala. 54 | Ala. | 1853

GIBBONS, J.

This indictment is founded upon an offence purely statutory, and from numerous decisions of this court in like cases, it is sufficient if the indictment charges the offence in the words of the statute, or in words tantamount to those employed by the statute. The State v. Click, 2 Ala. 26; State v. Duncan, 9 P. 260; State v. Stedman, 7 P. 495; Worrell v. The State, 12 Ala. 732; The State v. Bullock, 13 Ala. 413. The indictment in this case seems to have employed the words of the statute literally. The demurrer therefore was correctly overruled.

The court below charged the jury, that if they believed the evidence, they must find the defendant guilty. This charge necessarity involves the construction of the statute, in order to ascertain whether the proof made out the offence. It is lawful in the State of Alabama for any one obtaining a license, to retail spirituous liquors; it is also lawful for any one obtaining a license, to keep a billiard table. What then is the meaning of the statute creating the offence on which the indictment is founded? We understand its meaning to be, that although one duly licensed may retail or keep a billiard table, or do both at the same time under certain circumstances, yet he cannot unite the two at the same time and place. The statute seems to have regarded these employments, (although sanctioned by law,) as demoralizing in their nature; and while it permits them to be carried on separately, it prohibits them from being united in the same person, at the same time and place.

In our construction of the statute, it does not matter whether the billiard table is in the same room or under the same roof where spirituous liquors are retailed. If the one is contiguous to the other, and forms part and parcel of the same establishment, it falls witbin it. Tbe statute reads as follows: “Every person who shall keep a billiard table in connection with a house where spirituous liquors are retailed, as an appendage thereto, shall on conviction,” &e. The phrase “ as an appendage thereto,” we understand to refer back to billiard table, and the billiard table is to be an appendage to the house where spirituous liquors are retailed. This phrase, “ as an appendage thereto,” is to be understood in the same sense as the word “appurtenance,” or “out house,” when applied to the main building on any given premises; meaning part and parcel of the same whole. We do not here undertake to say how far the billiard table must be separated from the bar-room, in order to render them separate establishments; but we do not hesitate to say that the proof in this case, according to our construction of the statute, made out the offence. There was therefore no error in the charge of the court.

The charge requested assumes, that in order to make out the offence, there must have been a rule or understanding between the billiard players and the defendant that they should get liquors from him. This, we think, an incorrect interpretation of the statute. The offence created by it'is, as we have above stated, the uniting of the two employments in the same person, at the same time and place. Whoever does this, is guilty of the offence. The charge was properly refused, and the judgment is affirmed.