Lambie v. State

• Decision Date: 15 May 1907
• Parties: LAMBIE v. STATE.
• Court: Alabama Supreme Court

44 So. 51

151 Ala. 86

LAMBIE v. STATE.

Supreme Court of Alabama

May 15, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Jack Lambie was convicted of illegal sale of intoxicating liquors and he appeals. Affirmed.

The indictment was in the following language: "The grand jury," etc., "charge that Jack Lambie sold spirituous, vinous, or malt liquors without a license and contrary to law; second, that Jack Lambie did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors without a license and contrary to law; third, that Jack Lambie did unlawfully sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters, or cordials, or fruits preserved in alcoholic liquors, in Jefferson county, not in an incorporated town or city having police regulation, both by day and night."

The following demurrers were assigned to the indictment:

To the first count: "Because it does not specify the place where such alleged violation was committed, as required by law when charging a violation of a local prohibitory law. (2) Because it does not allege that the offense was committed outside of an incorporated town or city having police regulation both by day and by night. (3) Because it does not allege the violation of any prohibition statute by alleging the name of the place or locality. * * * (5) Because it charges a violation of the revenue law, and not a prohibitory law within a prohibited locality. (6) Because the prohibitory law of Jefferson county establishes a prohibition district in Jefferson county with the exception of incorporated towns and cities having police regulation both by day and by night, and it is not alleged that the sale took place within the exception. (7) Said prohibitory act repeals the general law of the state in Jefferson county, except in incorporated towns and cities, and the indictment does not allege in this count that the sale took place within the exception. (8) It does not appear whether the defendant is charged with a violation of a local prohibitory statute or the general revenue law. (9) Because certain territory has been specially exempted from the operation of the general prohibition laws of Jefferson county, and it is not alleged that the sale did not take place in the exempted territory."

To the second count the several grounds of demurrer to the first count were interposed, with the additional ground: "That it is alternatively alleged that the defendant did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors without license and contrary to law, and that two of said averments, namely, to give away and otherwise dispose of, do not charge any offense known to the law or violate any special statute."

The same grounds were interposed to the third count.

Thomas T. Huoy, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

HARALSON J.

The indictment seems to have been framed in exact conformity with the act of the Legislature, approved December 8, 1892 (Acts 1892-93, pp. 15, 16).

The defendant demurred to the indictment on grounds set out in the transcript, which demurrer was properly overruled. Guarreno v. State, 42 So. 833; Daniel v State, 43 So. 22.

T. D Reeves, for the state, testified that, last spring he went into "his" place of business, and that there was a man behind the bar. It is not stated whose place of business it was; but the context shows it was defendant's. An objection for irrelevancy was properly overruled.

He testified to a conversation he had with the man in the store where defendant was present at the time, putting a faucet in a barrel; that he asked the man "if they kept anything there to drink, and that he replied that they kept hop jack hop ale and whisky, but that hop jack or hop ale was really beer, but they called it hop jack or hop ale; that he asked for two bottles, telling the man that he wanted to take it home with him; that the man said he did not know whether he could take it out of the store or not, and went to where defendant was putting the faucet in the barrel, and talked some to him, and returned and said he could not take it out of the store; that witness told the man he would take it, and that he bought one bottle--which the man opened for him--and drank it in the store; that it tasted and looked like beer and in his judgment was beer, and he thought it would make a man drunk; that the store he was in, was on Twenty-Fourth street, Bessemer, and that the man from whom he bought the bottle said it was defendant's store." He also testified that he had no conversation or connection with defen...