Freiberg v. State

• Decision Date: 25 February 1892
• Citation: 10 So. 703,94 Ala. 91
• Parties: FREIBERG v. STATE.
• Court: Alabama Supreme Court

10 So. 703

94 Ala. 91

FREIBERG v. STATE.

Supreme Court of Alabama

February 25, 1892

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Alexander Freiberg was convicted of unlawfully selling liquor to a minor, and appeals. Affirmed.

Defendant was tried and convicted at the October term, 1891, of the Anniston city court, under the following indictment "The grand jury of said county charge that, before the finding of this indictment, that Alex. Freiberg alias Alexander Freiberg, sold, bartered, exchanged or gave spirituous, vinous, or malt liquors to a minor Samuel Nobel, alias Sam Noble, without the consent of the parent or person having the management or control of said minor, and not upon the prescription of a physician, against the peace and dignity of the state of Alabama." There was demurrer to this indictment, on the ground that it failed to charge that the alleged sale of liquor to the alleged minor was without the consent of a guardian. This demurrer was overruled, and the defendant excepted thereto. The state only examined one witness, one Sam Noble, who stated that he bought some whisky, in the city of Anniston, from the defendant, 12 months before the finding of the indictment, and since the amendment of the statute went into effect; that he was between 17 and 18 years of age; that he was a superintendent and general manager of the Anniston Ice Company, a corporation doing business in Anniston; that he had done business with the defendant as said superintendent, and had made contracts with the defendant, and with the firm of which the defendant was a member, and had never told the defendant his age. The defendant, as a witness in his own behalf, testified that he did not remember whether he ever sold said Sam Noble any liquor; that he had known said Noble for only a few months, and had done business with him as superintendent and general manager of the Anniston Ice Company; that, from his position and his general appearance, the defendant took said Noble to be over 21 years of age, and that he honestly believed said Noble was 21 years old. The defendant separately excepted to the portion of oral charge given by the court, and to the refusal of the court to give the two charges requested by him, which said charges are stated in the opinion.

McLeod & Tunstall, for appellant.

Wm. L. Martin, Atty. Gen., and J. H. King, for the State.

CLOPTON J.

The ground of demurrer to the indictment is evidently founded on the phraseology of section 4038 of the Code, without observance of, or reference to, its amendment by the act of February 18, 1891. By the amendatory act, the words "or guardian" are omitted, leaving the statute, as amended to read, "without the consent of the parent or person having the management or control of such minor." Acts 1890-91, p. 1209. The indictment negatives the consent in the language of the amending act. But without...