Olmstead v. State
| Decision Date | 01 May 1890 |
| Citation | 89 Ala. 16,7 So. 775 |
| Parties | OLMSTEAD v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Anniston, B. T. CASSADY, Judge.
The appellant, Percy Olmstead, was indicted by the grand jury of the city court of Anniston for selling spirituous, vinous, or malt liquors without a license, and contrary to law, and was tried and convicted therefor. On the trial of the case, as shown by the bill of exceptions, the defendant moved to compel the solicitor to elect under what statute he was prosecuting the defendant. Thereupon the solictor stated that the defendant was prosecuted under section 4036 of the Code of 1886, the general law prohibiting "retailing or selling vinous or spirituous liquors without a license." The state introduced a witness whose testimony tended to prove that he had bought a pint of lager-beer from the defendant in the city of Anniston, Calhoun county, Ala., but a short time before the finding of the indictment; that he paid the defendant for the said beer, and drank the same in the defendant's presence, and on the defendant's premises. The defendant thereupon moved to exclude the testimony of the state's witness, on the ground that section 4036 of Code of 1886 "was not in force in precinct 15, Calhoun county, where said offense was alleged to have been committed." In support of this motion the defendant introduced in evidence and read the act of the general assembly of Alabama, approved January 23, 1872 entitled "An act to prohibit the sale of spirituous liquors in the town of Oxford, and within five miles thereof;" and the defendant also introduced evidence tending to show that all of the city of Anniston was within five miles of the town of Oxford. The state thereupon introduced and read in evidence the act of the general assembly of Alabama, approved March 19, 1875, entitled "An act to authorize probate judges in the counties of Jackson, Clarke, Shelby, *** Calhoun, Sanford, Jefferson, *** Blount, and Morgan to order elections in certain cases to prevent the sale or giving or other disposition of vinous or spirituous liquors within certain limits in such counties." The court overruled the defendant's motion to exclude the evidence offered by the state, and the defendant thereupon excepted. The defendant oftentimes renewed his motion to exclude the state's evidence on the same ground as above stated, and in support of each motion he offered and read in evidence several local and...
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