State ex rel. Garber v. Semmes

ANDERSON, J. — the recent case of Nash ex rel. v. Semmes, supra, 50 South. 120, we held that the Constitution authorized the Legislature to dispense with indictments in prosecution for misdemeanors, and that Acts Sp. Sess. 1907, p. 189, was not subject to certain constitutional infirmities suggested and argued in brief of counsel for the petitioner, Nash. This case, however, as indicated by the respondent’s answer and the brief of counsel, presents a question not argued in the brief in the Nash Case, supra. Acts 1907, Sp. Sess., p. 189, purports both by the title and the body to dispense with indictments only in prosecutions for the “sale, barter or exchange of intoxicating liquors.” It does not dispense with indictments in prosecutions for giving away to induce trade, furnish at public places, or otherwise dispose of same. Sales; barters, and exchanges do not necessarily include “giving away, furnishing at public places or otherwise disposing of liquors,” etc. The act does not, therefore, dispense with an indictment when a defendant is prosecuted for giving away or otherwise disposing of liquors, as it is confined in operation to “sales, barter or exchange.” The affidavit, in the case at bar, charges the defendant with “giving away, furnishing at a public place, or otherwise disposing of liquor,” etc., in addition to selling, bartering, or exchanging same; and this defendant, being thus charged, was entitled to an indictment before being put to trial upon the charge preferred against him, and the judge of the city court properly struck the case from the trial docket. It may be that the Legislature desired to dispense with indictments in prosecu [181] tions for all violations of the state-wide prohibition law; but such an intention cannot be gathered from the language of the act. The act in question does not specifically refer to the state-wide law, if such could make it applicable, under section 45 of the Constitution, which is doubtful, but which point we need not decide, as it only attempts by reference or otherwise to dispense with indictments for prosecutions for a “sale, barter or exchange.” The mandamus is denied. Dowdell, O. J., and McClellan and Sayre, JJ., concur.