Raisler v. State

STONE, J. — The indictment in this case is fatally defective, under section 3618 of the Revised Code. That section prohibits the sede of vinous or spirituous liquors in quantities less than a quart, without license. The present indictment [65] is framed in the disjunctive, and charges that the defendant “ sold, bartered, exchanged, or otherwise disposed of, or permitted to be taken, spirituous, vinous, or malt liquors,” etc. Several of these disjunctive averments charge no offense known to the law. The indictment thus' charges that the defendant did one of several acts, many of which are not indictable under the statute. A disjunctive averment in pleading, to be sufficient, must, in each of its alternative phases, charge an indictable offense. Andrews v. McCoy, 8 Ala. 920; Lucas v. Oliver, 84 Ala. 626; David v. Shepherd, 40 Ala. 587. It is due to the circuit judge that we should say, the sufficiency of the indictment does not appear to have been brought to his attention. Still, we feel bound to notice it. 1 Bish. Or. Procedure, § 1196. In the rulings on evidence, and in the charge to the jury, we find no error. The revenue law, approved March 6, 1876 (Pamph. Acts, 78, 79, 80; chap. 9, sections 1, 6, 7), contains provisions, which must be observed when the indictment is for engaging in the business of retailing. See Harris v. The State, 50 Ala. 127, and authorities cited; Bryant v. The State, 46 Ala. 302; Espy v. The State, 47 Ala. 533. The present indictment is not under that statue. See McIntyre v. The State, at the present term. "We do not consider it necessary to notice any other questions. Beversed and remanded. Let the defendant remain in custody, until discharged by due course of law.