Feibelman v. State

• Decision Date: 16 May 1901
• Parties: FEIBELMAN v. STATE.
• Court: Alabama Supreme Court

30 So. 384

130 Ala. 122

FEIBELMAN v. STATE.

Supreme Court of Alabama

May 16, 1901

Appeal from criminal court, Jefferson county; Samuel E. Greene Judge.

Marcus Feibelman was convicted of selling liquor without a license and appeals. Affirmed.

The statute under which the indictment was drawn prohibited the selling of spirituous, vinous, or malt liquors, or intoxicating bitters or beverages, within three miles of Ruhama Baptist Church, East Lake, 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 Ruhama Baptist Church, sold a liquor known as "hop jack." Upon examination by expert chemists, they testified that they had analyzed the liquor called "hop jack," and found that it contained from 1 3/4 to 2 per cent. alcohol. They further testified that this hop jack was produced by fermentation of malted barley, diluted with water, and was therefore a malt liquor, but that the liquor hop jack was not capable of producing intoxication. The defendant thereupon moved the court to exclude all of the testimony, upon the following grounds: (1) That the beverage shown to have been sold by the defendant was not included within the statute (2) that said beverage called "hop jack" was not intoxicating. The court overruled the motion, and the defendant duly excepted. The cause was tried by the court without the intervention of a jury, and, upon the hearing of all the evidence, the court found and adjudged the defendant guilty as charged in the indictment.

M. M Ullman, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

The appellant was indicted for selling vinous, spirituous, or malt liquor in violation of a local prohibition statute. The trial was had before the judge of the Jefferson criminal court, without a jury, and the defendant was found and adjudged guilty. The evidence tended to show that the defendant sold a liquor called "hop jack" within the prohibitory district, and that this hop jack was a malt liquor. The conclusion of the judge on the evidence was excepted to, and is here assigned as error. We know of no statute authorizing this court to review conclusions of fact reached by the judge of the Jefferson criminal court in trials without jury; but, if there be such statute, we would have no hesitation in concurring in the finding in this case.

Other exceptions were reserved to the rulings of the trial court on the admissibility of evidence, and these we will consider. They raise but one...