There are two counts in the indictment. The first, in the usual form, is for selling spirituous, vinous, or malt liquors without a license and contrary to law; while the second is for selling or giving away such liquors in violation of a local prohibition law. The indictment was filed on the 4th day of May, 1907. At the request of the defendant the court gave in his favor the general affirmative charge as to the second count, but refused a similar charge as to the first count.
Upon the evidence disclosed by the record the court might properly have refused both of the charges; but because it gave one of them affords no valid reason for the argument that it committed error in refusing the other. Nor does the fact that the jury returned a verdict
Charge 2 was properly refused. Besides other infirmities, this charge possesses that of failure to hypothesize materiality of the “statements” of the witnesses.
Charge 3 is misleading, and was properly refused, on the authority of Adams’ Case, 115 Ala. 90, 22 South. 612, 67 Am. St. Rep. 17.
Without discussing any other phase of the proposition presented by charge 4, it suffices to say of it that the use of the word “must,” instead of “may,” therein, condemns the charge. Undoubtedly the testimony tended to show defendant’s guilt under section 5076 of the Code of 1896, and that section, which was of force all over Marengo county, authorized the fine assessed by the jury and the punishment administered by the court.
There is no error, and the judgment is affirmed.
Affirmed.