Noltey v. State

• Citation: 144 So. 457,225 Ala. 584
• Decision Date: 10 November 1932
• Docket Number: 8 Div. 445.
• Parties: NOLTEY v. STATE.
• Court: Alabama Supreme Court

144 So. 457

225 Ala. 584

NOLTEY v. STATE.

8 Div. 445.

Supreme Court of Alabama

November 10, 1932

Certiorari to Court of Appeals.

Petition of Erwin Noltey for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Noltey v. State, 144 So. 455.

Writ denied.

J. Foy Guin, of Russellville, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

FOSTER J.

The first count of the indictment is in form 101, § 4556, except that the word "buy" is omitted. There is no contention that it is subject to demurrer. The second count adds the words "or beverages, to-wit: Jamica (sic) ginger," and is otherwise the same as count 1.

The claim is that count 2 is defective because Jamaica ginger is not a prohibited liquor as defined by section 4615. But that section defines such liquor, among others, as (4) "any intoxicating bitters or beverages by whatever name called," and (5) "any liquor, drink, or liquid made or used for beverage purposes containing any alcohol."

Section 4644, Code, provides that the form, in effect 101, is sufficient and includes "any device or substitute for any of said liquors." Although Jamaica ginger may not be judicially known to be an alcoholic or prohibited liquor, yet, if it is so alleged, the name of it does not disprove such allegation. It then becomes a question of fact. Wadsworth v. Dunnam, 98 Ala 610, 13 So. 597; Marks v. State, 159 Ala. 71, 48 So 864, 133 Am. St. Rep. 20; Carl v. State, 87 Ala. 17, 6 So. 118, 4 L. R. A. 380; Brandon v. State, 24 Ala. App. 289, 134 So. 890.

The only difference in legal effect between counts 1 and 2 is that to sustain count 2 the proof must show the unlawful handling of Jamaica ginger, and that it is a prohibited liquor as defined by law.

The fact that section 4731, Code, provides that it shall be unlawful to sell or dispose of Jamaica ginger except by a druggist on the conditions named does not militate against a construction of sections 4615, 4621, whereby Jamaica ginger may be shown as a fact to be a prohibited liquor, when so alleged, and, as such, those sections would apply with the exception of the right conferred by section 4731, which would relieve the transaction of being unlawful as alleged in counts 1 and 2. Under counts 1 and 2 defendant could be convicted for dispensing Jamaica ginger, if it is shown as a fact to be a prohibited liquor, unless defendant were justified by authority of section 4731; for in that event his conduct would not be "contrary to law," as those counts assert. A rule of law has been quoted in several cases that, when exceptions are expressed in the enacting clause of an act prohibiting the sale, etc., of liquor, the indictment should negative them in order to bring the alleged crime within the words of the statute; and that this is not necessary when the exceptions are created in provisos of the act. Clark v. State, 19 Ala. 552; Carson v. State, 69 Ala. 235; Bogan v. State, 84 Ala. 449, 4 So. 355; Grattan v. State, 71 Ala. 344; Sims v. State, 135 Ala. 61, 33 So. 162.

But it has been held that an allegation that the sale "was without a license and contrary to law is the equivalent of the negative averment referred to." Guarreno v. State, 148 Ala. 637, 42 So. 833, 835. See Tarkins v. State, 108 Ala. 17, 19 So. 24. There is now no license permitted, and the words negativing a license are now omitted, but the words "contrary to law" remain. These, we think, have that effect.

Count 3 charges that defendant did give away or sell the essence extract, or tincture of...