Hafter v. State

PETERS, C. J. This prosecution was commenced at the spring term, 1872, of the circuit court of Sumter county, and the indictment was filed in court on April 27, of that year. The offence charged is a violation of the revenue law of 1868. (Acts 1868, p. 297.) This act makes it unlawful to engage in or carry on certain occupations, particularly mentioned, without a license. Act, § 105. Another section (§ 111) prescribes the penalty for violations of said act. The fine to be imposed is three times the amount of the license, and the party found guilty may be confined in the county jail, not exceeding one year, at the discretion of the court. The law then proceeds to fix the prices of licenses, and in this case they are as follows: “ For wholesale dealers in spirituous, vinous, or malt liquors, 40 in any place of less than five thousand, inhabitants, fifteen dollars ; in any city of over five thousand, and less than fifteen thousand inhabitants, twenty-five dollars ; in any city of over fifteen thousand inhabitants, fifty dollars. Any person who shall sell, or in any way dispose of such liquors, in any quantity greater than one quart, shall be deemed a wholesale dealer; and if such liquors are drank on or about his premises, such dealer shall be liable to the penalties prescribed for not taking out a license as a retail dealer.” (Section 112, cl. 5.) The 4th clause of the same section fixes the prices of retail dealers, and they range from fifty to two hundred dollars. From this brief notice of the statute it is evident, that the offences intended to be denounced can only be committed in certain places, and the punishment depends on the place in which the act forbidden is committed, and each offence is punished in a different way. When this is the case, it has been the rule of this court, since the decision of Hirschfelder v. The State (18 Ala. 112), to require that the indictment shall charge that the act complained of was committed in one of the places named in the statute, and confine the prosecutor to that charge. This is the law as declared in the case of Harris v. The State, at the last January term of this court. Judged by the principle thus settled, the demurrer to the indictment should have been sustained. The court erred in overruling it. 2. The charge of the court is also erroneous. It predicates the guilt of the accused on the act of selling liquor by the quart, for profit, and with intent to evade the statute. This is not the law applicable to this indictment. The liquor must be sold or disposed of in a quantity greater than a quart, and drank on or about the premises of the vendor, to constitute guilt. The record in this case shows, that the accused was “ charged on an indictment with violating the revenue law.” But the result must be the same, if the prosecution be considered a charge for retailing spirituous liquors without license. There, the spirits must be shown to have been drunk on or about the premises of the vendor (Rev. Code, § 8618). In either aspect, the charge was wrong. The judgment of the court below is reversed, and the cause is remanded for a new trial, upon a new indictment, if the accused will not consent to such amendment of the present indictment as may be required and the law allows. (Rev. Code, §§ 4143, 4144.) The defendant, said Jacob Hafter, in the mean time, will not be discharged, except by due course of law.