Marcus v. State

• Citation: 8 So. 155,89 Ala. 23
• Parties: MARCUS v. STATE.
• Decision Date: 27 June 1890
• Court: Supreme Court of Alabama

8 So. 155

89 Ala. 23

MARCUS v. STATE.

Supreme Court of Alabama

June 27, 1890

Appeal from circuit court, Chilton county; JAMES R. DOWDELL, Judge.

The defendant in this case, appellant here, was indicted for selling spirituous, vinous, or malt liquors without a license, and contrary to law. The tendency and substance of the evidence, as adduced on the trial, are sufficiently shown by the opinion. At the request of the solicitor, in writing the court charged the jury that, if they believed the evidence, they must find the defendant guilty, and to this charge the defendant duly excepted. As is shown and narrated by the bill of exceptions, the jury retired to consider their verdict, and, after deliberating several hours, were brought into court by order of the presiding judge, without solicitation of the jury, and asked what was their trouble or difficulty, whether it was a disagreement as to the law or the evidence; to which question the foreman replied that it was upon the law. Thereupon the court said to the jury "You were supposed to be honest men when you were drawn and summoned as jurors, and men who would respect the solemn oath of a juror. You are bound under your oaths, and you have got to take the law as this court gives it to you. Under the written charge given you, if you believe the witnesses stated the truth, you are bound to find the defendant guilty. If you believe that the witnesses have committed perjury, or, if you disbelieve them, and it is your province to pass on their credibility, you could not convict; but you cannot captiously reject their evidence. As to the law governing the case, you have got to take it as the court gives it to you." To this action of the court, both in calling back the jury, and in the instructions given, the defendant objected, and duly excepted. The jury, in accordance with the charge, returned a verdict of guilty.

Wm. A. Collier, for appellant.

W L. Martin, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was convicted of selling spirituous liquors without a license, and contrary to law. The uncontroverted testimony of the witnesses, Price and Holland, shows that the defendant delivered to the latter about three gills of whisky, and that Holland paid him 35 cents in cash. It is not pretended that defendant had a license to retail, his occupation being that of a butcher. The contention seems to be that defendant sold some beef to Holland, and...