[Bogan v. The State ] The statute under which the conviction was had in this case was amended by act approved February 26, 1881. Sess. Acts, 50; Code of 1886, § 4038. Since then, to constitute the punishable offense of selling or giving intoxicating liquors to a minor, there are two categories which the indictment should negative, either of which legalizes the sale; or rather, under the statute, as framed, there may be said to have been three. The sale or gift was lawful, if made by, or with the consent of the parent, guardian, or person having the management and control of the minor, or, upon the prescription of a physician. The present case is controlled by that statute, as enacted, for it was committed before the Code of 1886 went into effect. The indictment being framed without reference to the amendment, is imperfect and defective. It fails to charge an indictable offense.-Britton v. State, 77 Ala. 202. The Code of 1886, § 4038, changes the phraseology of the act approved February 26, 1881. Reversed and remanded. Bogan v. The State. Indictment for Selling Liquor without License. 1. Form of indictment and proof.-An indictment which charges that the defendant "sold vinous or spirituous liquors without a license, and contrary to law," being in the form prescribed in the statute (Code of 1886, § 4037), is sufficient, and under it any violation of a special or local prohibition law may be proved. 2. Sume; exception in favor of physicians and druggists--If the defendant was a physician or druggist, and lawfully disposed of liquor under the restrictions allowed by the local law, this was matter of defense, and it was not necessary that the indictment should negative it. 3. Unconstitutional proviso in valid law.-A proviso in a local prohibitory law, making an unconstitutional discrimination in favor of wines manufactured in the State, may be declared void by the courts, while giving full force and effect to the other parts of the law. APPEAL from Cherokee Circuit Court Tried before Hon. JAMES AIKEN. The judgment entry of the lower court in this case recites that the indictment against defendant having been read to him, he demurred thereto upon the grounds specifically set [Bogan v. The State.] over forth in said demurrer; and that the demurrer was ruled; that on trial being had on his plea of "not guilty," defendant was convicted and fined in the sum of two hundred dollars. The demurrer, referred to in the judgment entry, nowhere appears in the record filed in this cause. The indictment charged, "that. Zach Bogan sold vinous or spirituous liquors. without a license and contrary to law," &c. THOS. N. MCCLELLAN, Attorney-General, for the State. SOMERVILLE. J.-1. The indictment was in the form prescribed by section 4037 of the Code (1886), which constituted section 4806 of the Code of 1876, and by the express terms of the statute itself is made sufficient to cover “all violations of special and local laws, regulating the sale of spirituous liquors within the place specified."-Powell v. State, 69 Ala. 10; Boon v. State, Ib. 226. 2. If the defendant was a druggist, or physician, and lawfully disposed of wine or liquors under the restrictions allowed in sections 2 and 3 of the act approved February 28, 1881 (Acts 1880-81, p. 167-168), he should have set this fact up as a matter of defense. These particular cases were in the nature of provisos, rather than of exceptions incorporated in the enacting clause, and it, therefore, was unnecessary for the indictment to negative them by averring, in advance, that the defendant did not come within the operation of these excepted cases.-Carson v. State, 69 Ala. 235; Britton v. State, 77 Ala. 202. 3. If the last proviso of the act, contained in section 4, which permitted any citizen of Alabama to sell domestic wine, was void as an unconstitutional discrimination against the citizens of other States, under the authority of McCreary v. State, 73 Ala. 480, we should hold the remainder of the act to continue in full force and effect. See, also, Powell v. State, 69 Ala. 10; and Tiernan v. Rinker, 102 U. S. 123. We discover no error in the record, and the judgment must be affirmed. VOL. LXXXIV. [Foster v. The State.] Foster v. The State Indictment for Playing Cards in Tavern or Inn. 1. Gaming; what is a tavern or inn.-A house of public entertainment, used both as a boarding-house and a tavern or inn, though unlicensed, is within the prohibition of the statute against playing cards at a "tavern, inn, public house," &c. (Code of 1876, § 4207; Code of 1886, § 4052); and the house being prima facie an entirety, a room in the third story, rented by the year from the proprietor, is also within the prohibition of the statute, although it is shown that the tenant sleeps, eats, and cooks his meals there. APPEAL from City Court of Montgomery. Defendant Foster was indicted for playing cards at a tavern, inn, or public house, &c., under 4052, Code 1886, and on trial was found guilty. The facts are set out in the opinion. The following charges, numbered 1 and 2, were requested by him, and refused by the court. 1. "If the jury believe from the evidence that the playing at cards, or betting at cards, occurred in the room occupied at the time of the playing or betting and for several years previous thereto, by DuBose Bibb as a bed room in which he lived and slept, and the evidence does not show beyond all reasonable doubt that people resorted there, then the said room would not be a public place, and the jury must acquit the defendant." 2. "Unless the jury are satisfied from the evidence that the boarding house of Mrs. Schoolcraft was a public house, was duly licensed by law, and that the travelling public was allowed at all times to resort thereto, that the room occupied by DuBose Bibb was a part of that public house, and connected therewith, and that cards were played at such public place, then the jury must find the defendant not guilty." THOS. N. MCCLELLAN, Attorney General, for the State. SOMERVILLE, J.-The defendant is indicted for playing at a game with cards at a tavern, inn, public house or out house, where people resort the indictment following the require [Foster v. The State.] ments of section 4052 of the Code of 1886.-Code of 1876, § 4207, The evidence, in our judgment, was sufficient to sustain a conviction for playing at a tavern or inn, and authorized the giving of the general affirmative charge, which was given by the court in favor of the State. 66 An inn is a house of entertainment for travellers being synonymous in meaning with hotel or tavern. It was formerly defined to mean a house where a traveller is furnished with everything which he has occasion for while upon his way."-Thompson v. Lacy, 3 B. & Ald. 283; People v. Jones, 54 Barb. (N. Y.) 311. But this definition has necessarily been modified by the progress of time, and the mutations in the customs of society and modes of travel in modern times. An inn, however, was always, and may now, when unlicensed, be distinguished from a boarding house, the guest of which is under an express contract, at a certain rate, and for a specified time the right of selecting the guest or boarder, and fixing full terms, being the chief characteristic of the boarding-house as distinguished from an inn, except as to inns or hotels specially licensed under the statute where general contracts with guests are expressly authorized. Code, 1886, §§ 1324, et seq.; Willard v. Reinhardt, 2 E D. Smith (N. Y.) 148; McDaniels v. Robinson, 62 Amer, Dec. 586, note. There is nothing inconsistent or unusual, however, in a house of public entertainment having a double character, being simultaneously a boarding-house and an inn. In respect to those who occupy rooms and are entertained under special contract, it may be a boardinghouse; and in respect to transient persons, who, without a stipulated contract, remain from day to day, it is an inn, tavern or hotel.-Cromwell v. Stephens, 2 Daly (N. Y.) 15; 24; Chamberlain v. Masterson, 26 Ala. 371. The house occupied by Mrs. Schoolcraft was clearly both an inn and boarding-house within the above definitions, partaking of a dual character in this particular. The playing was done in a room in the third story of this house, which had been rented from the proprietress by one Bibb by the year, and was occupied by him as a bed room, in which he, having no family, prepared his meals, ate and slept. There was no connection between said room and inn or boarding-house, except that it was part of the building occupied by Mrs. Schoolcraft, and the entrance to the room was through that to the boarding-house. Was the room a [Foster v. The State.] part of the inn so as to be brought within the prohibition of the statute directed against playing cards at an inn? It has been uniformly held in this State where a house is public, as a store, and a bed room in the same building is under the control of the proprietor of the building, the room, though used for private purposes, is prima facie within the prohibition of the statute as to playing at a public house, "unless it affirmatively appears that it is not used as an appendage to the store, nor in the prosecution of its business, nor in connection with the store for the mere convenience or accommodation of the owner, his employees or his customers but is occupied for some justifiable private purpose entirely disconnected from the business of the store, or the convenience of its customers."-Brown v. State, 27 Ala. 47; Huffman v. State, 29 Ala. 40; Arnold v. State, Ib. 46. Yet when the playing is at a public house, inn, tavern, or any other of the places specially enumerated in the statute, no matter what secrecy may be observed in the playing, those who participate in the game will be held to be violators of the law, and subject to the penalty.-Windham v. State, 26 Ala. 69; Bythwood v. State, 20 Ala. 47. So when a case is embraced in the words of a statute, and clearly falls within the mischief intended to be remedied by it, such case will be construed to come within the prohibition of the statute, however penal its terms may be.-Huffman v. State, 29 Ala. 40. The room in question was in the same building occupied as an inn, and was rented by the occupant from the proprietress of the inn. It must, therefore, be construed to be appurtenant to it, so as to be a part of it within the prohibition of of the statute.--Russell v. State, 72 Ala. 222. There can be no difference between the case of a room in a hotel or inn engaged by the year, the month, the week or the day, so far as the question before us is concerned. In the Elizabethan inns, travellers paid separately for their appartments and for each meal. In modern times there are hotels kept on what is known as the European plan, where rooms may be engaged for a specified price and time, without meals or other accommodations. In fact the modern guest often rents his room from the inn or hotel proprietor, and takes his meals at a restaurant; or obtain his meals there, and his lodging elsewhere there being at this day any amount of diversity as to the contracts and relations of the various patrons to the building and business of the proprietor. As observed |