Morgan v. State

• Decision Date: 21 February 1887
• Citation: 81 Ala. 72,1 So. 472
• Parties: MORGAN v. STATE.
• Court: Alabama Supreme Court

1 So. 472

81 Ala. 72

MORGAN v. STATE.

Supreme Court of Alabama

February 21, 1887

Appeal from circuit court, Calhoun county.

Indictment for selling vinous or spirituous liquors without a license. In this case the state introduced testimony tending to show that on one occasion a witness for the state went into the town of Oxford, in Calhoun county, state of Alabama, and meeting up with appellant in the street, asked him if he knew where witness could get some whisky; that witness gave appellant some money, and appellant then went off, and, after an absence of some little time, returned with a quart of whisky, which he delivered to witness; and that this occurred within 12 months before the finding of the indictment. This was all the evidence except that in reference to the record of the probate court of Calhoun county, referred to in the opinion, and which it is unnecessary to here set forth.

T N. McClellan, Atty. Gen., for the State.

CLOPTON J.

The indictment which charges the defendant with selling vinous or spirituous liquors without a license is framed in accordance with the provisions of section 4806 of the Code of 1876. The solicitor having announced, after reading the indictment to the jury, that he was proceeding against the defendant for a violation of "An act to regulate the sale, giving away, or otherwise disposing of spirituous, vinous, or malt liquors, or intoxicating bitters, or patent medicines having alcohol as a base, in Calhoun county," introduced in evidence against the objection of defendant, the record of the probate court showing that an election was held in compliance with the requirements of the act, and resulted in favor of prohibition. Acts 1882-83, p. 278. In Miller v. Jones, (in MSS.) we considered an act, the name of the county being changed, substantially the same in respect to the title and the provisions of the enactment. The one is a copy of the other. On the authority of that case we hold the act in question to be unconstitutional. It is useless to repeat the reasons. The record was improperly admitted.

We would remand the case if there was any evidence tending to show that the defendant had violated the general law. But the only act of defendant appears from the evidence to have been done as the agent or assisting friend of the witness; the defendant not being interested in the liquor, the sale, or the money paid for it. This we have held insufficient. Campbell ...