Du Bois v. State
| Decision Date | 20 June 1889 |
| Citation | 87 Ala. 101,6 So. 381 |
| Parties | DU BOIS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Tallapoosa county; JAMES R. DOWDELL Judge.
The indictment in this case charged that Barney Du Bois "sold vinous or spirituous liquor without a license, and contrary to law." On the trial the prosecution proved by one Mace "that he saw the defendant sell to one J. B Thayer three pints of whisky, for which said Thayer paid $1.50; and that this occurred in said county, within a half mile of Tallassee factory, within twelve months before the finding of the indictment." The prosecution offered in evidence, also, the act of the general assembly incorporating the Tallassee factory, which prohibited the sale of spirituous liquor within four miles of the company's factories. Sess. Acts 1851-52, p. 262. Defendant testifies "that, on the day before the alleged sale to Thayer, he was hired by Buckner & Son to go to Sentell's bar-room which was more than four miles from Tallassee factory, and purchase for them two quarts of whisky; that he met said Thayer on his way, who asked him to get three pints of whisky for him; that he [defendant] then went to said bar-room, and bought one gallon of whisky, which was put in a jug, and for which he paid four dollars out of his own money; that he let Buckner & Son have two quarts of whisky out of this jug, and let Thayer have three pints, for which Thayer paid him $1.50 the same price which he had paid." This being all the evidence, the court charged the jury, on request of the solicitor, "that they must find the defendant guilty, if they believed the evidence." Defendant excepted and appealed.
John A. Terrell, for appellant.
W. L. Martin, Atty. Gen., for the State.
If the testimony of the defendant be true, he neither sold, nor aided in selling, the liquor to Thayer. He purchased it for Thayer at a point which is shown to have been without the prohibited district. He was not interested in the sale, and in no sense was he the agent of the seller. He was agent of Thayer, the buyer, and did not assume to represent the seller. He advanced the not buying for his own use, but as an accommodation loan to Thayer, the purchaser. He made no profit, but received back only the money he had paid out for the liquor. If this testimony be true, the defendant is not guilty. Young v. State, 58 Ala. 358; Campbell v. State, 79 Ala. 271; Morgan v. State, 81 Ala. 72,...
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