Dinkins v. State

• Decision Date: 14 February 1907
• Citation: 149 Ala. 49,43 So. 114
• Parties: DINKINS v. STATE.
• Court: Alabama Supreme Court

43 So. 114

149 Ala. 49

DINKINS v. STATE.

Supreme Court of Alabama

February 14, 1907

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Oliver Dinkins was convicted of selling liquor without a license and appeals. Reversed and remanded.

Hill Hill & Whiting, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The indictment is in Code form, as provided by section 5077 of the Code of 1896, and under it "any act of retailing in violation of the law may be proved, and for any violation of any special and local laws regulating or prohibiting the sale of vinous, spirituous or malt liquors within the place specified, such form shall be good and sufficient." By an act of the General Assembly approved February 28, 1887 (Acts 1886-87, p. 665), the sale, giving away, or otherwise disposing of vinous, spirituous, or malt liquors in the county of Montgomery, outside of the corporate limits and police jurisdiction of the city of Montgomery, is prohibited and penalized. The proof in the instant case tends to show the sale of a tonic in bottles labeled "Cook's Malt Tonic," and also tends to show that the tonic was a fluid, that it contained some malt and was a "weak solution of some malt liquor," but that it had no intoxicating effects.

It is insisted by the defendant (appellant) that, to authorize a conviction, it was incumbent on the state to show that the fluid sold contained an appreciable quantity of malt liquor or that the malt was the predominant element; and Brantley's Case, 91 Ala. 47, 8 So. 816, is cited and relied on in support of the contention. In that case the indictment was in the same form as the one here, and it was sought to secure a conviction under a local statute which prohibited the sale, giving away, or otherwise disposing of vinous, spirituous, or malt liquors, intoxicating bitters, or any other intoxicating drink, by proof of a sale of intoxicating bitters known as "Harter's Wild Cherry Tonic," or "Cherry Bitters"; and the court did hold that, in order to secure a conviction under the indictment, it was indispensable to show that the bitters sold contained an appreciable quantity of one of the classes of liquors specified in the indictment. This ruling is based upon the satisfactory reasoning that, as the form of the indictment is exclusive in respect to all liquors not mentioned therein, a conviction could not be sustained under it on proof of a sale of intoxicating bitters, unless such bitters contained an appreciable quantity of one of the classes of liquors specified in the indictment. Allred's Case, 89 Ala. 112, 8 So. 56. In Feibelman's Case, 130 Ala. 122, 30 So. 384, the defendant was "indicted tried, and convicted for selling vinous, spirituous, or malt liquors without a license and contrary to law." The statute under which the conviction was had prohibited the selling of spirituous, vinous, or malt liquors, or intoxicating bitters or beverages, within three miles of Ruhama Baptist Church, Jefferson county (Acts 1880-81, p 156). It was shown on the trial of the case that the defendant, at East Lake, within three miles of said church, sold a liquor known as "Hop Jack," which contained from 1 3/4 to 2 per cent. alcohol, and that it was produced by...