Ulmer v. State

61 Ala. 208 | Ala. | 1878

STONE, J.

Section 3618 of the Revised Code is, in substance, what had been statutory law in this State for many years, except that one provision as to its punishment was then of recent enactment. — Code of 1852, sections 1058,1059, 3280; Stone & Shepherd’s Penal Code, section 76; Clay’s Dig. 554, section 4. As found in the Revised Code, the section provides that if an unlicensed retailer “ sells vinous or spirituous liquors of any kind in quantities less than one quart, or by the quart or less quantity, to any person of known intemperate habits, or in any quantity if the same is drunk on or about his premises,” must, on conviction, be fined, and may be imprisoned, or sentenced to hard labor for the county. This section, as will be perceived, embraced three distinct offenses; first, any sale, in quantity less than cm quart, no matter to whom made, or where drunk; second, any sale in quantity not exceeding one quart, to a person of known intemperate habits; third, a sale in any quantity, if the same is drunk on or about the premises of the seller. This section, as we will hereafter show, has been many times construed in this court. It has long been the settled policy of this State to tax the traffic in ardent, vinous or malt liquors, by requiring that persons engaging therein shall first take out a license. In the revenue law of February 19, 1867, section 106 — Pamph. Acts, 295 — it is declared to be a misdemeanor in any person who does any act or does any business for which a license is required to be taken out, or tax paid under certain sections of that act — (retailing spirituous or vinous liquors is embraced in them — ) without having first taken out and paid for such license, or paid such tax; and the offender shall be fined double the amount of such license or tax so required. This section of the revenue law was made section 3652 of the Revised Code. In the revenue law approved December 31,1868, section 111, Pamph. Acts 330, it is declare;!, “ That any person who, after the third Monday in March in 1869, shall be engaged in, or carry on any business or profession, or do any act, for the doing, prosecuting, or carrying on of which a license is by law required to be taken out, without having paid for and taken out such license, shall be deemed guilty of a misdemeanor, and shall be fined three times the amount of such license, and may be confined in the county jail not exceeding one year, at the discretion of the court.” This court ruled that this section of the revenue law defines a new and distinct offense, is not repugnant to section 3618 of the Revised Code, and that both statutes were of force. Under the former law it was held that any one act done in violation of its provisions, exposed the offender to its penalties. To sustain an indictment under the revenue law, it was held that the accused must have engaged in the business; or, where the act constituting the offense was not a continuous profession or occupation — (the exhibition of a show, for instance — ) must have done the act charged against him. — Martin v. The State, 59 Ala. 34; Mulvey v. The State, 43 Ala. 316; Lillenstein v. The State, 46 Ala. 498; Campbell v. The State, 46 Ala. 116; Hafter v. The State, 51 Ala. 37; Weil v. The State, 52 Ala. 19; McPherson v. The State, 54 Ala. 221; Lawson v. The State, 55 Ala. 118.

Section 4204, Code of 1876, representing section 3618 of the Revised Code, is so altered as to read as follows: “ Any person who, not having first procured a license as a retailer from the proper legal authority, under the revenue law, sells vinous or spirituous liquors of any kind in any quantities, if the same is drunk on of about his premises, must on conviction be fined,” &e. It will be readily seen that section 4204 omits two of the three offenses embraced in section 3618 of the Revised Code. Section 4205 provides for one of the omitted offenses; while the other — selling “vinous or spirituous liquors of any kind in quantities less than one quart,” is nowhere retained. To be “ engaged in, or carrying on any business for which a license is required, with out .having taken out such license,” is retained as a misdemeanor, and constitutes section 4274 of the Code of 1876. It is thus shown that after the Code of 1876 went into effect — December 9, 1877 — there was no punishment in this State for selling without license spirituous or vinous liquors, in any the smallest quantity, unless the liquor was drunk on or about the premises of the seller, or unless the seller engaged in, or carried on the business, without first taking out a license. True, certain other statutory offenses, falling under this head, were retained; such as selling to minors, students of schools, persons of known intemperate habits, &c. Those, hoAvever,. do not affect this case.

The indictment in the present case would have been sufficient under section 3618 of the Revised Code. It is fatally defective under section 4274 of the Code of 1876. An indictment under that section, to be good, must aver that the accused was engaged in, or carrying on the business. Eorm of indictment numbered 30 in the Revised Code, Retailing without License, is omitted from the Code of 1876; done, we suppose, because the codifiers had materially changed the the provisions of section 3618, to which that form was adapted. The later Code, however, contains forms intended to apply to this changed section — (No. 4204,5, 6 of the Code of 1876 — ) numbered 58, 59, 60. But they retained section 4133 of the Revised Code, and made it 4806 of the Code of 1876. That-section declares, that “ in an indictment for retailing vinous or spirituous liquors without a license, it is sufficient to charge that the defendant sold vinous or spirituous liquors without a license, and contrary to law; and on the trial, any act of retailing in violation of law may be proved; and for all violations of any special and local laws regulating the sale of spirituous liquors within the place specified, the common form of indictment under this section shall beheld good and sufficient in law.” This section, we hold, makes the-indictment found in this record sufficient, when an unlicensed retailer “ sells vinous or spirituous liquors of any kind in any quantities, if the same is drunk on or about his premises.”’ It would also be good and sufficient for “ violations of any special and local laws regulating the sale of spirituous liquors within the place specified;” for such is the language of the statute. It applies, however, only to unlicensed retailers that were punishable under the Code of 1876, and would not be sufficient, in prosecutions under sections 4205 and 4206 of that Code. What we here say refers alone to the Code of 1876, as it was adopted. The omission in the Code has been remedied by statute of December 3d, 1878, which again makes it an indictable offense in any person who sells vinous or spirituous liquors of any kind in any quantity less than one quart, without having first procured a license as a retailer. Pamph. Acts, 71. The result of this enactment probably is, to restore the fitness and sufficiency of the indictment found in this record, where an unlicensed retailer sells vinous or spirituous liquors of any kind in any quantity less than one quart, or in any quantity if the same, or any portion thereof,. is drunk ou or about his premises. It has no reference to offenses by licensed retailers, or to the offenses defined iu sections 4205 aud 4206 of the Code of 1876.

Some of the rulings of the Circuit Court are not reconcilable with our views given above, and the result is that the judgment must be reversed. But, inasmuch as the facts of this case may bring it within the provisions of the statutes, as they remained of force after the Code of 1876 went into effect, we will remand the cause.

The question on the organization of the grand jury by which this indictment was found, was considered and decided in the case of Finley v. The State, ante p. 201. We need not consider it farther. That decision will lead to the quashing of this indictment, when the case returns to the Circuit Court.

Let the defendant remain in custody until discharged by due course of law.