Jones v. State

• Decision Date: 21 April 1903
• Citation: 136 Ala. 118,34 So. 236
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

34 So. 236

136 Ala. 118

JONES v. STATE.

Supreme Court of Alabama

April 21, 1903

Appeal from Hall county court; W. C. Christian, Judge.

Cad Jones was convicted of selling liquor without a license, and he appeals. Reversed.

The indictment under which the appellant in this case was tried and convicted was as follows: "(1) The grand jury of said county charge that before the finding of this indictment that Cad Jones did, within the county of Hale, in the state of Alabama, sell spirituous, vinous, or malt liquors, without a license, and contrary to law. (2) The grand jury of said county further charge that before the finding of this indictment that Cad Jones did, within the county of Hale, in the state of Alabama, sell, give away to, or procure for Mark Otts, or did aid the said Mark Otts in procuring, vinous spirituous, or malt liquors, or intoxicating drinks, bitters or beverages, without a license, and contrary to law, against the peace and dignity of the state of Alabama." The defendant demurred to the first count of the indictment upon the ground that it fails to state the name of the person to whom the defendant is charged with having sold spirituous vinous, or malt liquors without a license, and contrary to law. This demurrer was overruled. The defendant then moved the court to require the solicitor for the state to furnish him with a bill of particulars to show the time and place of the sale of the liquor charged in the indictment. The facts in reference to this motion are sufficiently stated in the opinion. The court overruled the motion, and the defendant duly excepted. J. W. Otts, a witness for the state, testified that within 12 months before the finding of the indictment in this case the defendant sold to Mark Otts, a brother of the witness, a quart of whisky; that he (the witness) saw the defendant and Mark Otts go to the express office in Greensboro, in Hale county, and come from the express office with a negro, carrying a box for them; that they went to the defendant's room, where the defendant had the negro to open the box, and that the negro took from the box a quart bottle of whisky, and set it on top of the box, and then left; that Mark Otts picked up the quart bottle of whisky so placed on the box, and put it in his pocket, and then gave the defendant 75 cents, and told him he would give him the balance as soon as he got it; that then Mark Otts left the room, carrying the whisky with him. The defendant, as a witness in his own behalf, testified that he never, at the time mentioned by the witness or any other time, sold any whisky to said Mark Otts; that Mark Otts had a key to his (the defendant's) room, and he had also in the defendant's room a private locker, to which he had a key. Thereupon the defendant was asked by his attorney the following question: "What did Mark Otts keep in that locker which he had in your room and to which he had a key?" The court sustained the objection of the state to this question, and to this ruling the defendant duly excepted. Counsel for the defendant then stated to the court that he proposed to prove to the jury by the defendant that at the time fixed by the state's witness as to the sale charged in the indictment Mark Otts kept wine and whisky, his individual property, in the locker in the defendant's room; but upon objection on the part of the state to making such proof the court sustained the objection, and to this ruling the defendant duly excepted. Thereupon defendant was asked by his counsel the following question: "State whether at that time Mark Otts kept in that locker wine and whisky." The state objected to this question, the court sustained the objection, and the defendant duly excepted. During the argument of the defendant's counsel to the jury he used the following language: "The proof shows that Cad Jones and Mark Otts went to the express office together, and that when they came out they were with a negro who had a box; that they went immediately to Jones' room, to which Mark Otts had a key, and in which he had a locker, to which he also had a key, and there the box was opened, and one bottle of whisky was seen by witness J. W. Otts, who testifies that he saw Mark Otts take the bottle and put it in his pocket, and he also saw Mark Otts hand Jones seventy-five cents, and heard him say he would give him the balance some other time. We know that it may take money to take packages out of the express office, and, for all the jury knows from the testimony, the seventy-five cents may have been money paid by Jones for the purpose of getting the box out of the express office." The solicitor objected to the last sentence of the language quoted above commencing with the words, "We know that it may take money to take packages out of the express office," and moved the court to exclude the same, upon the ground that there was nothing in the testimony from which such inference, as stated by the attorney, could be drawn. The court sustained the objection of the solicitor, and to this ruling of the court the defendant duly excepted.

Tyson, J., dissenting in part.

De Graffenried & Evins, for appellant.

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

TYSON J.

The defendant was convicted for violating a local prohibition law. The first count in the indictment is in the form prescribed by the Code. Cr. Code 1896, p. 335, form 79. A demurrer was interposed to this count on the ground that it failed to allege the name of the person to whom the liquor was sold, which was overruled. Section 5077 of the Code of 1896 provides that: "In an indictment for retailing spirituous, vinous or malt liquors without license, it is sufficient to charge that the defendant sold spirituous vinous or malt liquors without a license and contrary to law; and on the trial, 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 spirituous, vinous or malt liquors within the place specified, such form shall be held good and sufficient." Prior to the enactment of this statute it would doubtless have been necessary to allege the name of the purchaser. Dorman v. The State, 34 Ala. 216. And it is insisted that it is still necessary. This contention proceeds upon the assertion that the statute is unconstitutional--that it is violative of section 7 of the Bill of...