Bouyer v. City of Enterprise

WALKER, P. J. The complaint in this case sufficiently averred the existence of a, municipal ordinance under which either of the acts with which the defendant was plainly charged in the alternative constituted an offense against the municipality; and it was not subject to the demurrer interposed to it.—Bell v. Jonesboro, 3 Ala. App. 652, 57 South. 139; Turner v. Town of Lineville, 2 Ala. App. 454, 56 South. 602; Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742. But the ordinance offered in evidence did not correspond with the averments of the affidavit or complaint as to its nature or import. The charge as made imported the existence of a law or ordinance of the city of Enterprise under which either a sale, an exchange, or other disposition of spirituous, vinous, or malt liquors Avere prohibited. The only ordinance offered in evidence was cne enacted in the year 1903, which was in the following Avords: “Any person Avho shall engage in or carry on the business of a retail liquor dealer or who shall sell by retail any spirituous, vinous or malt liquors, or other in-, toxi eating drinks, Avithout first having taken out a license. must, on conviction, be fined not less than ten or more than one hundred dollars.” This ordinance did not prohibit a disposition of such liquors otherwise than by a sale, or in the Avay of engaging in or carrying on the business of a retail dealer in them, without a license. It did not prohibit the giving away of such liquors, for instance.—Williams v. State, 91 Ala. 14, 8 South. 668; 23 Cyc. 181. It did not evidence the existence of such a municipal law as was charged by the complaint or affidavit to have been violated by the defendant by his either selling, exchanging, or otherwise disposing of spirituous, vinous, or malt liquors. The defendant’s objection to its introduction in evidence, on the ground, among others, that the affidavit did not charge the de 278 fendant with violating such an ordinance, was well taken and should have been sustained. Each of the acts with which the defendant was charged in the alternative did not constitute an offense under that ordinance. The evidence was materially variant from the allegation, and should not have been admitted over objections duly interposed. An averment to the effect that either of the acts charged against the defendant in the alternative constitutes an offense against the law of a municipality is not supported by evidence of the enactment by such municipality of an ordinance under which an act covered by the charge is not an offense.—Allred v. State, 89 Ala. 112, 8 South. 56; Hill v. State, 145 Ala. 58, 40 South. 654. Neversed and remanded.