Bogan v. State

• Decision Date: 31 May 1888
• Citation: 4 So. 355,84 Ala. 449
• Parties: BOGAN v. STATE.
• Court: Alabama Supreme Court

4 So. 355

84 Ala. 449

BOGAN v. STATE.

Supreme Court of Alabama

May 31, 1888

Appeal from circuit court of Cherokee county; JAMES AIKEN, Judge.

The indictment under which the defendant in this case was tried and convicted, was in the following language: "The grand jury *** charge that before the finding of this indictment, that Zack Bogan sold vinous or spirituous liquors without a license, and contrary to law, against," etc. On the trial of the cause in the court below, the defendant demurred to the indictment. The court overruled the demurrer, and the defendant duly excepted.

T. N. McClellan, Atty. Gen., for the State.

SOMERVILLE, J.

The indictment was in the form prescribed by section 4037 of the Code of 1886, which constituted section 4806 of the Code of 1876, and by the express terms of the statute itself is made sufficient to cover "all violations of special and local laws regulating the sale of spirituous liquors within the place specified." Powell v. State, 69 Ala. 10; Boon v. State, Id. 226. If the defendant was a druggist or physician, and lawfully disposed of wine or liquors under the restrictions allowed in sections 2 and 3 of the act approved February 28, 1881, (Acts 1880-81, pp. 167, 168,) he should have set this fact up as a matter of defense. These particular cases were in the nature of provisos, rather than of exceptions incorporated in the enacting clause, and it, therefore, was unnecessary for the indictment to negative them by averring in advance, that the defendant did not come within the operation of these excepted cases. Carson v. State, 69 Ala. 235; Britton v. State, 77 Ala. 202. If the last proviso of the act, contained in section 4, which permitted any citizen of Alabama to sell domestic wine, was void, as an unconstitutional discrimination against the citizens of other states, under the authority of McCreary v. State, Ala. 480, we should hold the remainder of the act to continue in full force and effect. See, also, Powell, v. State, 69 Ala. 10, and Tiernan v. Rinker, 102 U.S. 123. We discover no error in the record, and the judgment must be affirmed.