Cost v. State

• Decision Date: 27 July 1892
• Citation: 11 So. 435,96 Ala. 60
• Parties: COST v. STATE.
• Court: Alabama Supreme Court

11 So. 435

96 Ala. 60

COST v. STATE.

Supreme Court of Alabama

July 27, 1892

Appeal from circuit court, Bibb county; J. R. DOWDELL, Judge.

William Cost was tried and convicted for selling liquor contrary to law. The indictment contained two counts, and to each of these counts the defendant demurred. The counts, as well as the demurrers and rulings thereon, are sufficiently stated in the opinion. Upon the trial of the case, as is shown by the bill of exceptions, the state introduced evidence tending to show that the defendant had, on several occasions, sold whisky. The defendant moved the court to require the solicitor to elect for which of said sales he would prosecute the defendant. This motion was overruled by the court, and the defendant duly excepted. The court, at the request of the state, gave the general affirmative charge for the state. The defendant excepted to the giving of this charge, and appeals. Reversed.

Wm. L. Martin, Atty. Gen., for the State.

STONE C.J.

The act approved February 28, 1881, (Sess. Acts 1880-81, p. 187,) enacts "that from and after the first of April, 1881, it shall be unlawful for any person or persons to sell, give away, or otherwise dispose of any spirituous, vinous, or malt liquors, intoxicating bitters, or any intoxicating beverages of any kind or description, within the limits of the county of Bibb." The indictment against the defendant, on which he was tried, contains two counts. The first charges that the defendant "sold spirituous, vinous, or malt liquor without a license, and contrary to law." This is sufficient, when the offense prosecuted is retailing without a license as a retailer. Code, form 78, p. 276. Section 4037 of the Code declares that an indictment in this form shall be sufficient, when the charge is that the defendant retailed spirituous, vinous, or malt liquors without a license. It is also declared to be sufficient in prosecutions "for any violation of any special and local laws regulating or prohibiting the sale of spirituous, vinous, or malt liquors within the place specified." There can be no question that this, the first count of the indictment, was sufficient to authorize a conviction under the statute copied above. Block v. State, 66 Ala. 492; Powell v State, 69 Ala. 10.

The indictment contains a second count, charging that defendant "engaged in or carried on the business of a retail dealer in spirituous, vinous, or malt liquor, at a place not in any city, town, or village," without a license, and contrary to law. To this count there was a demurrer by the defendant, which the court overruled. This is an entirely different offense from the one charged in the first count and we suppose it was framed under section 3892 of the Code. Sanders v. State, 58 Ala. 371; Martin v State, 59 Ala. 34; Lawson v. State, 55 Ala. 118. That statute reaches, and only reaches, cases in which the offender "engages in or carries on a business for which a license is required, without having taken out such license." To come within this statute, the act charged must be one which is permitted to be done, but permitted only when a license therefor is obtained. There being no authority for licensing the sale of liquor in Bibb county, the act charged in this second count is not a "business for which a license is...