Sampson v. State

• Decision Date: 20 June 1895
• Citation: 18 So. 207,107 Ala. 76
• Parties: SAMPSON v. STATE.
• Court: Alabama Supreme Court

18 So. 207

107 Ala. 76

SAMPSON v. STATE.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

William Sampson was convicted of selling liquor without a license and appeals. Affirmed.

O. D Street, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

HEAD J.

The indictment in this case charges that the defendant engaged in, or carried on, the business of a retail dealer in spirituous, vinous, or malt liquors, at a place not in any city, town, or village, without a license, and contrary to law. On this indictment the jury rendered the following verdict: "We, the jury, find the defendant guilty as charged in the indictment, and assess his fine at $375,00." The appellant moved the trial court to arrest the judgment, and assigned the following grounds: "(1) The indictment charges, in the disjunctive, two or more offenses, and the verdict of the jury is a general finding of guilty as charged in the indictment. (2) The verdict fails to show what offense the jury found the defendant guilty of. (3) The verdict is insufficient to uphold a judgment of conviction, in this: The finding of the jury is general,-'Guilty as charged in the indictment,'-without specifying which offense they found him guilty of, while the indictment charges more than one offense, the punishments of which are different." The court overruled the motion, and its ruling is assigned as error.

Section 629, subd. 3, Code 1886, provides that the state license for retailing spirituous, vinous, or malt liquors in any city town, village, or any other place of less than 1,000 inhabitants shall be $125, but that dealers in lager beer, exclusively, shall be charged one-fourth of the above rates. Section 3892, Id., provides that any person who, after the 15th day of January in any year, engages in or carries on any business for which a license is required, without having taken out such license, must, on conviction, be fined three times the amount of the state license. The fine, then, for engaging in or carrying on the business of a retail dealer in vinous, spirituous, or malt liquors, otherwise than as a dealer in lager beer exclusively, is fixed at $375 (three times state license), while the fine for dealing in lager beer, exclusively, is fixed at $125 (three times state license). The verdict shows, then, with sufficient certainty, the offense of which the jury found the defendant guilty. Davis v. State, 52 Ala. 357. "Malt liquor" is a broader term than "lager beer," and includes other beverages, as ale and porter. The fine for dealing in either of the latter two liquors without a license would be $375. To charge a person, then, with engaging in or carrying on the business of a retail dealer in malt liquors is not the same thing as to charge him with dealing in lager beer, exclusively. Conceding that, under the indictment in this case, the defendant could have been convicted of dealing in lager beer, exclusively, the fine for that offense is absolutely fixed by law, and, when assessed by the jury, would indicate with as much certainty the finding of the jury on the facts as if they had made a special finding. It is conceded by appellant that it is not necessary that the jury should express, ipsissimis verbis, the offense of which they find the defendant guilty, and that if the duty of fixing the punishment for the offense charged rests with the jury, and, in discharge of their legal duty, they fix by their...