Darrington v. State

DENSON, J. The sale, giving away, or otherwise disposing of spirituous, vinous, or malt liquors has been prohibited by law in the county of Washington ever since February 24, 1887. — Acts 1886-87, p. 699. The prohibition act referred to was in force at the time the defendant was tried and convicted in this case; and in connection with it the conviction of the defendant was secured, and is here sought to be sustained, under the act of the Legislature of March 12, 1907, entitled “An act to define, prohibit and punish aiding or abetting or counseling or procuring an unlawful sale, purchase, gift, or other unlawful disposition of spirituous, vinous, or malt liquors, or other liquors prohibited by law from being sold, given away, or otherwise disposed of.”— Gen. Acts 1907, p. 366. Section 1 of the act provides: “That any person who makes, aids-or abets, or counsels or procures an unlawful sale or unlawful purchase or unlawful gift or other unlawful disposition of spirituous, vinous or malt liq - uors or other liquors prohibited by law from being sold, given away or otherwise disposed of; or any person who shall act as agent, or assisting friend of the seller or purchaser in procuring or effecting the unlawful sale or purchase of any such liquors, must on conviction,” [63] etc. This section of the act concludes as follows: “And a conviction may he had for a violation of this act under an indictment for retailing spirituous, vinous or mad: liquors without a license and contrary to law.” It is-here insisted that so much of the act of March 12, 1907, as relates to the indictment in prosecutions for violations of its provisions, is offensive to section 45. of the Constitution of 1901, and is therefore void. Section 45 of the Constitution of 1901, amongst other things, provides that “each law shall contain but one subject, which shall be clearly expressed in its title, * * * and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only ; but so much thereof as is revived amended, extended or conferred, shall be re-enacted and published at length.” The question of but one subject in the title of an act, to he clearly expressed therein, is threadbare in discussion. All the court has to do is to apply the established rules to the case in judgment. The title may be very general, and need not specify every clause of the statute; “but the requirement of the Constitution is met if they are referable and cognate to the subject expressed.” It seems clear that a clause providing for the procedure or indictment against offenders against the statute is not only germane to the title of the present act, but results as a complement of the thought and is included in it. — Ex parte Gayles, 108 Ala. 514, 19 South. 12; Ex parte Mayor, etc., 116 Ala. 186, 22 South. 454. The act does not purport to be revisory or amendatory, but is original in form, complete, and intelligible. Therefore it is not obnoxious to the latter part of the section of the Constitution above quoted. — Sisk v. Cargile, 138 Ala. 164, 35 South. 114; Phoenix, etc. Co. v. Fire Department, 117 Ala. 631, 23 South. 843; Cobb v. Vary, 120 Ala. 263, 24 South. 442. [64] We have discussed the only points urged in respect, to the validity of the act, and find no fault with it. The indictment contained two counts; but the second was eliminated by the solicitor’s announcing to the court, before the case was submitted to the' jury, that he did not insist on a conviction upon that count. The first count is in the general form, viz.: “The grand jury of said county charge that before the finding of this indictment John Darrington sold spirituous, vinous, or malt liquors without a license and contrary to law, against the peace and dignity of the state of Alabama.” The evidence in the case is brief and without conflict, and is as follows: The state proved that John Darrington, at the request of John Onderdonk, purchased for said Onderdonk a bottlé of whisky from Hub Smiley on the 1st day of October, 1907, in Washington county, Ala., at Lewis’ still; that in making said purchase defendant acted merely as a friend of said Onderdonk, am l had no interest whatever in said transaction, and did not act in any manner for the seller of said whisky. Upon this evidence and the indictment as set out above, the court, at the request of the state in writing, gave the general affirmative charge, with proper hypothesis, against the defendant. The general statute (section 7353 of the Code of 1907) prescribes the form of the indictment for selling-spirituous, vinous, or malt liquors without a license (the form used in the instant case), and provides that “for any violation of any special and local laws regulating- or prohibiting- the sale of spirituous, vinous, or malt liquors * * * such form shall be held good and sufficient,” and yet under an indictment in the form prescribed it has been distinctly held by this court that proof of a gift in violation of a prohibition statute will not support a conviction under such an indictment — one charging [65] only a sale. — Williams’ Case, 91 Ala. 14, 8 South. 668; Guarreno’s Case, 148 Ala. 637, 42 South 833. In the Williaons’ Case the court said: “The section of the Code referred to,' and which permits the common form of indictment used, is for the violation of any local and special law ‘regulating the sale’ of spirituous liquors, or ‘prohibiting’ the sale of spirituous liquors. If ‘sale' has a technical legal meaning, well known, and does not include in its signification ‘to give,’ the section of the Code relied upon cannot authorize this common form of indictment in cases of ‘giving’ liquor in violation of the law, hut restricts it to cases of selling. To convict a person of ‘giving’ away liquor contrary to law, he must be indicted or charged with the offense of ‘giving’ contrary to law, and not for selling.” So, upon the same considerations, in the present case it seems clear that, the indictment charging only a sale, the proof, to authorize a conviction thereunder, should show a sale by the defendant. In other words, the writer is of the opinion that, although the statute authorizes the general form of indictment for retailing liquors, it ex vi termini restricts it to illegal sales, and does not cover the case of one who acts merely as the “assisting friend” of the seller or purchaser, and who, under a proper indictment, might have been convicted as such under the statute. As well might a person be convicted of larceny under an indictment charging murder or an assault and battery. It is clear from the evidence in the case that the defendant was not guilty of the offense charged in the indictment; and, in the opinion of the writer, it should follow that the court erred, both in giving the affirmative charge for the state and in refusing it to the defendant. — Young’s Case, 58 Ala. 358; Campbell’s Case, 79 Ala. 271; Morgan’s Case, 81 Ala. 72, 1 S1uth. 472. [66] The foregoing are the views of the writer, concurred in by Justices Mayfield and Sayre'; but. the other Justices, constituting a majority, take a different view, and hold that, under the indictment and the evidence, the defendant was properly convicted, and they order an affirmance of the judgment. Affirmed. Dowdell, G. J.; and Simpson, Anderson, and McClellan, JJ., concur. Denson, Mayfield, and Sayre, JJ., dissent.