preferring of the first charge or indictment and the subsequent indictment must be deducted from the time limited for the prosecution of the offense last charged. Molett's case, 33 Ala. 408; Foster's case, 38 Ala. 425; Weston's case, 63 Ala. 155; Coleman's case, 71 Ala. 312; Smith's case, 79 Ala. 21; Bazell's case, 89 Ala. 14. As amend ed Feb. 18, CHAPTER 170. LIQUORS, SELLING, GIVING, ETC., ILLEGALLY. 5076-5087. 5076 (4036) (4204) (3618) (76). Retailing or selling vinous or spirituous liquors without license.-Any person, who, without license as a retailer, sells, barters or exchanges spirituous, vinous, or malt liquors, in any quantity less than one quart, or in any quantity, if the same, or any portion thereof, is drunk on or about his premises, must, on conviction, be fined not less than fifty, nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months. (Form 79.) The court will take judicial notice that lager-beer is malt liquor.-Adler's case, 55 Ala. 16; Watson's case, Ib. 158. And that whisky is a spirituous liquor. Freiberg's case, 94 Ala. 91; Wall's case, 78 Ala. 417. And that grape wine is a vinous liquor.-Adler's case, 55 Ala. 16. Statute construed.-Ulmer's case, 61 Ala. 208. This offense is distinguished from engaging in or carrying on business; is not a revenue, but a penal law, and hence not repealed by a revenue law. Campbell's case, 46 Ala. 116; Lillensteine's case, Ib. 498; McPherson's case, 54 Ala. 221; Sanders's case, 58 Ala. 371. It is mere police regulation. McPherson's case, 54 Ala. 221. One act of sale sufficient, of which prosecutor must elect.-Martin's case, 59 Ala. 34; McPherson's case, 54 Ala. 221; Sanders's case, 58 Ala. 371; Lawson's case, 55 Ala. 118; Cost's case, 96 Ala. 60. When election not required.—Olmstead's case, 92 Ala. 64; Taylor's case, 100 Ala. 68. What is and what is not an election by prosecutor.-Elam's case, 26 Ala. 48; Hughes's case, 35 Ala. 351; Seibert's case, 40 Ala. 60. License to keep a tavern does not confer the right.-Page's case, 11 Ala. 849. License to one partner confers no authority on firm or co-partners, although a license may be granted to a partnership.-Long's case, 27 Ala. 32. License to one firm confers no authority on another composed in part of same members.-Wharton v. King, 69 Ala. 365. Mere removal to another county does not abrogate license, or make clerk indictable for continuing business.-Thompson's case, 37 Ala. 151. Agent of unlicensed corporation indictable.—Martin's case, 59 Ala. 34. Conviction of husband for sale by wife in his presence.-Hensly's case, 52 Ala. 10. Statute contains no exception of sale for medicinal purposes.-Thomason's case, 70 Ala. 20. When drinking must be "on or about the premises."-Hafter's case, 51 Ala. 37. See Ulmer's case, 61 Ala. 208. What constitutes "on or about the premises."-Swan's case, 12 Ala. 594; Dowman's case, 14 Ala. 242; Easterling's case, 30 Ala. 46; Brown's case, 31 Ala. 353; Pearce's case, 40 Ala. 720; Christian's case, Ib. 376; Patterson's case, 36 Ala. 297; Powell's case, 63 Ala. 177; Christian's case, 40 Ala. 376; Whaley's case, 87 Ala. 83. A sale from jug in a field one mile from house, sufficient.-Powell's case, 63 Ala. 177; Pearce's case, 40 Ala. 720. The fact "on or about the premises," sometimes a question for the jury, and sometimes for the court.-Brown's case, 31 Ala. 353; Easterling's case, 30 Ala. 46; Daly's case, 33 Ala. 431. No defense that liquor was drunk on premises without the knowledge of defendant and against his caution.-Jones's case, 96 Ala. 56. Sale or gift made under a shift or subterfuge violates statute.-Marcus's case, 89 Ala. 23; Billingsley's case, 96 Ala. 114; Roberson's case, 100 Ala. 37. Intoxicating bitters or beverages.-Carson's case, 69 Ala. 235; Wall's case, 78 Ala. 417; Carl's case, 87 Ala. 17; s. c., 89 Ala. 93; Brantley's case, 91 Ala. 47; Compton's case, 95 Ala. 25; Roberson's 88 case, 100 Ala. 123. "Brandy peaches" and "brandy cherries."-Ryall's case, 78 Ala. 410. Fact that the decoction was classed and taxed by the United States as a proprietary medicine, immaterial.-Wall's case, 78 Ala. 417. When defendant acted as the mere agent of another in procuring the liquor.-Campbell's case, 79 Ala. 271; Morgan's case, 81 Ala. 72; DuBois's case, 87 Ala. 101. Sale by partner or clerk in scope of business or employment.-Segars's case, Ala. 144. Sale by seventeen-year-old girl under direction of parent.-Cagle's case, 87 Ala. 93. Sale in back room of defendant's store, without knowledge or interest on his part, does not render him liable.-Perkins's case, 92 Ala. 66. Statute not intended to interfere with bona fide sale of articles used for medical, toilet or culinary purposes and which contain alcohol as a necessary ingredient.-Carl's case, 87 Ala. 17. See Compton's case, 95 Ala. 25. When state makes out a prima facie case, burden on defendant to show his authority to sell. Tinker's case, 96 Ala. 115; Bogan's case, 84 Ala. 449. Void license no protection and may be collaterally attacked. - Russell's case, 77 Ala. 89. That the sale was in original imported packages is no defense since the act of congress approved August 8, 1890.-Tinker's case, 90 Ala. 630. 5077 (4037) (4806) (4133) (583). Forms of indictment for retailing, and violating special prohibitory laws; proof of retailing. In an indictment for retailing spirituous, vinous, or malt liquors without license, it is sufficient to charge that the defendant sold spirituous, vinous, or malt liquors without a license, and contrary to law; and on the trial, any act of retailing in violation of the law may be proved; and for any violation of any special and local laws regulating or prohibiting the sale of spirituous, vinous, or malt liquors within the place specified, such form shall be held good and sufficient. Indictment for retailing, etc., in form prescribed by the Code, is sufficient. Bryan's case, 45 Ala. 86; Sills's case, 76 Ala. 92; McCreary's case, 73 Ala. 480. When defective.-Raisler's case, 55 Ala. 64. Indictment charging that defendant "did sell vinous or spirituous liquors without a license and contrary to law," sufficient for offense of violating local prohibitory laws.-Powell's case, 69 Ala. 10; Boon's case, Ib. 226; McCreary's case, 73 Ala. 480; Bogan's case, 84 Ala. 449; Olmstead's case, 89 Ala. 16; Williams's case, 91 Ala. 14; Compton's case, 95 Ala. 25; Cost's case, 96 Ala. 60. Does not cover giving away liquor under local law.—Williams's case, 91 Ala. 14. Includes intoxicating bitters when shown to contain spirituous, vinous, or malt liquors in appreciable quantity.-Brantley's case, 91 Ala. 47. ed 18, p. 1209. 5078 (4038) (4205). Liquor to minor or person of intemperate as amend habits; false statement as to age.-Any person, who sells, barters, 1891 exchanges or gives spirituous, vinous, or malt liquors to a minor, without the consent of the parent or person having the management or control of such minor, unless it be upon the prescription of a physician; or who sells, barters, exchanges or gives spirituous, vinous, or malt liquors to a person of known intemperate habits, unless it be upon the prescription of a physician, must, on conviction, bet fined not less than fifty, nor more than five hundred dollars; and any minor, who obtains any such liquor by means of a false representation as to his age, must, on conviction, be fined not more than fifty dollars. (Form 80.) Punishes sale with or without license.-Ulmer's case, 61 Ala. 208. The actual seller, whether owner of saloon, or employe, indictable.-Marshall's case, 49 Ala. 21. The requisition must be a verbal or written application or request to sell by the physician himself.-Bain's case, 61 Ala. 75. Proof of infancy, based upon recollection of witness as to former appearance of alleged minor. Weed's case, 55 Ala. 13. Defendant permitted to prove that minor was maturelooking person; but witness cannot be asked if he would not take him to be twenty-one years old.-Marshall's case, 49 Ala. 21; Freiberg's case, 94 Ala. 91. Charge asserting fact of minority is conclusive of defendant's intention, is erroneous.-Ib. Immaterial who owns liquor given to minor or intemperate As amend- Dec. 4, 1886. p. 121. person.-Hill's case, 62 Ala. 168. Sale made under honest, though mistaken, belief that minor was twenty-one years old, is excusable; but whether so made is a question for jury.-Adler's case, 55 Ala. 16; Freiberg's case, 94 Ala. 91. Voluntary drunkenness of defendant no defense or excuse.-Hill's case, 62 Ala. 168. Specific intent not necessary; gift or sale is evidence of intention.-Bain's case, 61 Ala. 75. To authorize a conviction for selling to a person of intemperate habits, these facts must be proved: A sale or gift to a person of intemperate habits, and knowledge in the seller or giver of such intemperate habits.-Jones's case, 100 Ala. 88; Collins's case, 83 Ala. 365; Tatum's case, 63 Ala. 147. Barkeeper selling to one who divides with or treats an intemperate person or a minor, at the bar, is guilty of selling to such intemperate person or minor.-Walton's case, 62 Ala. 197; Page's case, 84 Ala. 446. Or selling to a third person to whom, on suggestion of barkeeper, minor handed money for the purpose. Lile's case, 88 Ala. 139. What does not constitute either selling or giving. Young's case, 58 Ala. 358; Bryant's case, 82 Ala. 51; Coker's case, 91 Ala. 92. Sale of brandy peaches or brandy cherries preserved in spirituous liquors in appreciable quantity, within statute.-Ryall's case, 78 Ala. 410. That minor has been relieved of disabilities of non-age immaterial.-Coker's case, 91 Ala. 92. Aiding or abetting sale is sufficient.-Walton's case, 62 Ala. 197. What constitutes intemperate habits.-Tatum's case, 63 Ala. 147; Smith's case, 55 Ala. 1. Knowledge by defendant of one's intemperate habits necessary; but may be inferred by the jury from notoriety.-Smith's case, 55 Ala. 1.; Tatum's case, 63 Ala. 147; Stallings's case, 33 Ala. 425. Proof of fact of intemperate habits. Atkins's case, 60 Ala. 45. Is a collective fact to which a witness may testify. Tatum's case, 63 Ala. 147; Smith's case, 55 Ala. 1. Whether a person of such known habits, is a question for the jury.-Elam's case, 25 Ala. 53; Smith's case, 55 Ala. 1. Indictment in Code form sufficient; not necessary to negative either the consent of the parent or guardian or the prescription of a physician. Heath's case, 99 Ala. 179; Freiberg's case, 94 Ala. 91; Tatum's case, 63 Ala. 147; Spigener's case, 62 Ala. 383; Atkins's case, 60 Ala. 45. Indictment alleging sale without prescription from "licensed physician" is valid, though "physician" alone is sufficient.-Dean's case, 100 Ala. 102. Burden on defendant to prove such consent or prescription.-Freiberg's case, 94 Ala. 91; Atkins's case, 60 Ala. 45; Farrall's case, 32 Ala. 557. Jury need not find whether liquor, if averred in the alternative, was spirituous, vinous, or malt.-Adler's case, 55 Ala. 16. Court may charge jury as to evil consequences of this offense.-Weed's case, 55 Ala. 13. For selling or giving liquor to intoxicated person, resulting in death, no civil action lies.—King v. Henkie, 80 Ala. 505. 5079 (4039) (4206). Giving or selling liquor to person of unsound mind. Any person, who sells, barters, exchanges or gives spirituous, vinous, or malt liquors to a person known or reputed to be of unsound mind, unless it be upon the prescription of a physician, or with the consent of the parent, guardian, husband or wife of such person, must, on conviction, be fined not less than fifty, nor more than five hundred dollars. (Form 81.) 5080. Employing minor to sell liquor.-Any person, who employs any minor to sell vinous, spirituous, or malt liquors, must, on conviction, be fined not less than fifty, nor more than five hundred dollars. 5081 (4040) (4202). Prohibiting disposition of liquors near place of religious worship, etc.-Any person, who sells, gives away, or otherwise disposes of any spirituous, vinous, or malt liquors, within one mile of any church, or other place of religious worship, not in any incorporated town or city, on any day on which there is public preaching at such place, must, on conviction, be fined not less than twenty, nor more than fifty dollars, and be imprisoned in the county jail, or sentenced to hard labor for the county, one or both, at the discretion of the jury. Special prohibitory liquor laws not unconstitutional.-Barnes's case, 49 Ala. 342; Dorman's case, 34 Ala. 216. Retail license not operative within special prohibited limits.-Barnes's case, 49 Ala. 342; Hudgin's case, 46 Ala. 208. 5082 (4041). Evasion of prohibitory liquor laws.-Any person, who conceals himself in any house, room, booth, inclosure, or other place, and sells, gives away, or otherwise disposes of spirituous, vinous, or malt liquors, or intoxicating beverage, in violation or evasion of law, or, by any device or subterfuge, sells, gives away, or otherwise disposes of any spirituous, vinous, or malt liquors, or intoxicating beverage, in violation or evasion of law, must, on conviction, be fined not less than two hundred and fifty, nor more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. Elements of offense, sufficiency of indictment and evidence, policy of statute.—Boggus's case, 78 Ala. 26. 5083 (4042). Permitting such evasion.-Any person, being the owner or proprietor, or having the control or possession of any house, room, booth, inclosure, or other place, who knowingly permits any person to conceal himself therein, and to sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, or intoxicating beverage, in violation or evasion of law, or knowingly permits any person to use therein any device or subterfuge in selling, giving away, or otherwise disposing of such liquors or beverage, in violation or evasion of law, must, on conviction, be fined not less than fifty, nor more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. 5084 (4048). Same; duty of justice, etc.; warrant for arrest of all persons on premises, issued when.-If any person violates the provisions of section 5082 (4041), and so conceals himself that he is not known, upon complaint being made on oath before a justice. of the peace, or judge of the county court, that spirituous, vinous, or malt liquors, or intoxicating beverage, have been sold, given away, or otherwise disposed of, in violation or evasion of law, and that the person committing such offense conceals himself in a house, room, booth, inclosure, or other place, or is using therein a device or subterfuge in selling, giving away, or otherwise disposing of such liquors or beverage, and that such person is unknown to the person making the complaint, it is the duty of such justice or judge to issue forthwith a warrant of arrest for such unknown person for the offense charged in the complaint, and immediately place such warrant in the hands of a constable or sheriff, who shall proceed at once to the house, room, booth, inclosure, or other place, in which such violation of law is alleged to have occurred, and arrest all persons therein; and if such constable or sheriff is refused admittance, he shall force an entrance into such house, room, booth, inclosure, or other place, and, if necessary, break in the door, or other part thereof, and arrest all persons found therein, and carry them before the officer before whom the warrant is returnable; and thereupon such proceedings shall be had as if such warrant contained the name of each person so arrested. 5085 (4044). Same; forfeiture of lease, etc.-Any lessee of any house, room, booth, inclosure or other place, who uses or permits the Feb.9.1895, p. 487. use of the same in violation of sections 5082 (4041) and 5083 (4042), thereby forfeits his lease. 5086. United States license competent evidence on trial of indictment for violation of prohibition laws.-Upon the trial of any person indicted for the violation of any law which prohibits the sale of vinous, spirituous, or malt liquors or of alcoholic bitters or beverages of any kind, it shall be competent to prove that the defendant has obtained a license from the internal revenue department of the United States to sell such liquors, bitters, or beverages at the places named in the indictment for a period of time including the time charged in the indictment; and parol testimony may be received of the existence of such license. 5087. Taking or soliciting orders for liquors to be shipped into prohibition district.-Any person, who, within the limits of any district in which the sale of spirituous, vinous, or malt liquors is prohibited by law, solicits or receives any order for spirituous, vinous, or malt liquors in any quantity to be shipped or sent into such district, must, on conviction, be fined not less than twenty, nor more than one hundred dollars; and, if such order be in writing, parol evidence thereof is admissible. (Form 84.) CHAPTER 171. LYNCHING. 5088, 5089. 5088 (3750) (4317) (3684) (141). Abusing or beating accused person, or lynching.-Any two or more persons, who abuse, whip, or beat any person, upon any accusation, real or pretended, to force such person to confess himself guilty of any offense, or to make any disclosures, or to consent to leave the neighborhood, county, or state, must, on conviction, each be fined not less than five hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. (Form 11.) Underwood's case, 25 Ala. 70; Higginbotham's case, 50 Ala. 133. 5089 (3985). Sheriff, deputy, or jailer, permitting lynching of prisoner. Any sheriff, deputy-sheriff, or jailer, who negligently, or through cowardice, allows a prisoner to be taken from the jail of his county, or to be taken from his custody and put to death by violence, or to receive bodily harm, must, on conviction, be fined not less than five hundred, nor more than two thousand dollars, and may also be sentenced to hard labor for the county for not more than two years. |