Liquors, Selling, Giving, Etc., Illegally. CHAPTER 248. LIQUORS. 7352-7385. ARTICLE 1. LIQUORS, SELLING, GIVING, ETC., ILLEGALLY. 7352-7370. SHIPMENT, TRANSPORTATION, DELIVERY, OR SOLICITING ORDERS ARTICLE 3. SALOONS, LIQUOR DEALERS' HOUSES, OPENING AND CLOSING OF. 7378-7382. ARTICLE 4. FEDERAL LICENSES TO SELL LIQUORS, LIST OF PROCURED AND PUB- SECTION. ARTICLE 1. LIQUORS, SELLING, GIVING, ETC., ILLEGALLY. 7352-7370. 7352. Selling vinous or spirituous liquors without license. 7353. Forms of indictment for sell- 7354. Liquor to minor or person of person of unsound mind. 7356. Prohibiting disposition of liquors near place of religious worship, etc. 7357. Evasion of prohibitory liquor 7358. Permitting such evasion. SECTION. 7361. United States license compe- 7362. Taking or soliciting orders for 7364. Witnesses before grand jury 7365. Prescriptions of physicians on 7366. Prescriptions of physicians; 7368. Penalty for violation of three 7369. Hop-jack, malt tonics, bever- 7360. Same; forfeiture of lease, etc. 7352. (5076) (4036) (4204) (3618) (76) Selling vinous or spirituous liquors without license.-Any person who, without a license, sells, barters, or exchanges spirituous, vinous, or malt liquors, in any quantity, must, on conviction, be fined not less than fifty nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months. (Form 100 [79].) (Feb. 18, 1891, p. 1209; Dec. 3, 1878, p. 71.) Defendant has no constitutional right to bill of particulars, showing the time, place, or name of person (r.c.c.) Liquors, Selling, Giving, Etc., Illegally. to whom sale was made.-Jones v. State, 136 Ala. 118 (34 So. 236). The understanding of the witness as to what connection certain persons had with sale not admissible in evidence; defendant obtaining liquor at request of purchaser.-Wildman v. State, 139 Ala. 125 (35 So. 995). When state proves one illegal selling, this constitutes an election and limits state to proof of that sale alone.-Wilson v. State, 136 Ala. 114 (33 So. 831). Defendant may be guilty though he was not the man who had liquor to sell.-Winter v. State, 133 Ala. 176 (32 So. 125). A distiller who distills brandy from apples and peaches upon shares is not guilty of violating the prohibition law as to selling, giving away, etc., of spirituous liquors.-Maxwell v. State, 120 Ala. 375 (25 So. 235). Blackberry juice after fermentation to which alcohol is added may be a vinous liquor within the prohibition. The fact that a judge had advised that the liquor was not vinous or within the prohibition no excuse.— Hinton v. State, 132 Ala. 29 (31 So. 563). Evidence examined and held sufficient to justify general affirmative charge against accused.-Winter v. State, 132 Ala. 32 (31 So. 717). Contracts as to illegal sales of liquors.-Sims v. Ala. Brewing Co., 132 Ala. 311 (31 So. 35). Local acts as to solicitor's fees control in prosecution under statute.-Bonds v. State, 130 Ala. 106 (30 So. 413). One who aids or abets or procures another to make sale, guilty.-Bonds v. State, 130 Ala. 117 (30 So. 427). One who acts as a mere agent or friend of the purchaser cannot be guilty of illegal sale.-Bonds v. State, 130 Ala. 117 (30 So. 427); DuBois v. State, 87 Ala. 101 (6 So. 381); Maples v. State, 130 Ala. 121 (30 So. 428). Legislature may prohibit sale of malt liquor whether it be intoxicating or not.-Feibelman v. State, 130 Ala. 122 (30 So. 384). Sale of hopjack, admissibility of evidence to show quality and ingredient of such liquor.-Costello v. State, 130 Ala. 143 (30 So. 376). Statute prohibiting the sale of liquors not embraced within title of the act is void.-State v. Davis, 130 Ala. 148 (30 So. 344). As to constitutional enactments of prohibition laws, see Robertson v. State, 130 Ala. 164 (30 So. 494); State v. Davis, 130 Ala. 148 (30 So. 344); Wilson v. State, 136 Ala. 114 (33 So. 831); Lewis v. State, 123 Ala. 84 (26 So. 516); Morgan v. State, 81 Ala. 72 (1 So. 472). Evidence that defendant assisted and procured the sale of the whiskey by another.-Wright v. State, 129 Ala. 123 (29 So. 864). A license for the sale of liquors is tax for the purpose of revenue, and the state can recover the tax in a civil action and right of action not affected by criminal statute or prosecution.-State v. Fleming, 112 Ala. 179 (20 So. 846) (54 Ala. 221; see 46 Ala. 116; 58 Ala. 371). Evidence examined and held sufficient to support a conviction.-Thomas v. State, 117 Ala. 134 (23 So. 636). Vendor need not be absolute owner of liquor in order to be guilty, it is the sale the law condemns.-Taylor v. State, 121 Ala. 24 (25 So. 689); s. c., 121 Ala. 39 (25 So. 701). Illegal sale within three miles of church in Lamar county in violation of local prohibition law.-Gilmore v. State, 125 Ala. 59 (28 So. 382). Municipal charter or ordinance prohibiting sale of liquor. Ex parte Russellville, 95 Ala. 19 (11 So. 18). Imprisonment until fine and costs paid, void.-Ex parte Russellville, 95 Ala. 19 (11 So. 18). Proof of single sale of three pint bottles of beer or whiskey will not support a conviction for sale of less than a quart.-Olmstead v. State, 90 Ala. 634 (8 So. 668); Bryant v. State, 46 Ala. 302. Court cannot presume that "Busby bitters" are within meaning of statute.-Allred v. State, 89 Ala. 112 (8 So. 56). Phrases 'intoxicating bitters,' cane beer," "hard cider," etc.. considered. Allred v. State, 89 Ala. 112 (8 So. 56). When incorporated social club is defendant.-Jacobi v. State, 59 Ala. 71; Manassas Club v. Mobile. 121 Ala. 561 (25 Sa. 628). Sale by licensed restaurant keeper.-Nicrosi v. State, 52 Ala. 336. Sale on a few special occasions of case whiskey in quantity less than a quart, sufficient.-Lemons & Martin v. State, 50 Ala. 130. Partners, liability of for violating revenue law.-Lemons & Martin v. State, 50 Ala. 130. Evidence that witness frequently bought beer from defendant and drank it on the premises will support a conviction.-Olmstead v. State. 92 Ala. 64 (9 So. 737). Where defendant testified that he acted as the mere friend of the purchaser to obtain the whiskey from the negro, he may be convicted.-Ledbetter v. State, 143 Ala. 52 (38 So. 836). The court will take judicial notice that lager beer is malt liquor.—Adler's case, 55 Ala. 16; Wat 66 Liquors, Selling, Giving, Etc., Illegally. son's case, Ib. 158. And that whiskey is a spirituous liquor.-Freiberg's case, 94 Ala. 91 (10 So. 703); Wall's case, 78 Ala. 417. And that grape wine is a vinous liquor.-Adler's case, 55 Ala. 16. Statute construed.-Ulmer's case, 61 Ala. 208. This offense is distinguished from engaging in or carrying on business; is not a revenue, but a penal law, and hence not repealed by a revenue law. Campbell's case, 46 Ala. 116; Lillensteine's case, Ib. 498; McPherson's case, 54 Ala. 221; Sanders's case, 58 Ala. 371. (See 112 Ala. 179.) It is mere police regulation.-McPherson's case, 54 Ala. 221. One act of sale sufficient, of which prosecutor must elect.-Martin's case, 59 Ala. 34; McPherson's case, 54 Ala. 221; Sanders's case, 58 Ala. 371; Lawson's case, 55 Ala. 118; Cost's case, 96 Ala. 60 (11 So. 435). When election not required.-Olmstead's case, 92 Ala. 64 (9 So. 737); Taylor's case, 100 Ala. 68 (14 So. 875). What is and what is not an election by prosecutor.-Elam's case, 26 Ala. 48; Hughes's case, 35 Ala. 351; Seibert's case, 40 Ala. 60. License to keep a tavern does not confer the right.-Page's case, 11 Ala. 849. License to one partner confers no authority on firm or co-partners, although a license may be granted to a partnership.-Long's case, 27 Ala. 32. License to one firm confers no authority on another composed in part of same members.-Wharton v. King, 69 Ala. 365. Mere removal to another county does not abrogate license, or make clerk indictable for continuing business.-Thompson's case, 37 Ala. 151. Agent of unlicensed corporation indictable.-Martin's case, 59 Ala. 34. Conviction of husband for sale by wife in his presence.-Hensly's case, 52 Ala. 10. Statute contains no exception of sale for medicinal purposes.-Thomason's case, 70 Ala. 20. When drinking must be "on or about the premises."-Hafter's case, 51 Ala. 37. See Ulmer's case, 61 Ala. 208. What constitutes "on or about the premises."-Swan's case, 12 Ala. 594; Dowman's case, 14 Ala. 242; Easterling's case, 30 Ala. 46; Brown's case, 31 Ala. 353; Pearce's case, 40 Ala. 720; Christian's case, Ib. 376; Patterson's case, 36 Ala. 297; Powell's case, 63 Ala. 177; Christian's case, 40 Ala. 376; Whaley's case, 87 Ala. 83 (6 So. 380). A sale from jug in a field one mile from house, sufficient.-Powell's case, 63 Ala. 177; Pearce's case, 40 Ala. 720. The fact on or about the premises," sometimes a question for the jury, and sometimes for the court.-Brown's case, 31 Ala. 353; Easterling's case, 30 Ala. 46; Daly's case, 33 Ala. 431. No defense that liquor was drunk on premises without the knowledge of defendant and against his caution.-Jones's case, 96 Ala. 56 (11 So. 192). Sale or gift made under a shift or subterfuge violates statute.-Marcus's case, 89 Ala. 23 (8 So. 155); Billingsley's case, 96 Ala. 114 (11 So. 408); Roberson's case, 100 Ala. 37 (14 So. 554). Intoxicating bitters or beverages.-Carson's case, 69 Ala. 235; Wall's case, 78 Ala. 417; Carl's case, 87 Ala. 17 (6 So. 118); s. c., 89 Ala. 93 (8 So. 156); Brantley's case, 91 Ala. 47 (8 So. 816); Compton's case, 95 Ala. 25 (11 So. 69); Roberson's case, 100 Ala. 123 (14 So. 869). "Brandy peaches" and "brandy cherries."-Ryall's case, 78 Ala. 410. Fact that the decoction was classed and taxed by the United States as a proprietary medicine, immaterial.-Wall's case, 78 Ala. 417. When defendant acted as the mere agent of another in procuring the liquor.-Campbell's case, 79 Ala. 271; Morgan's case, 81 Ala. 72 (1 So. 472); DuBois's case, 87 Ala. 101 (6 So. 381). Sale by partner or clerk in scope of business or employment.-Segars's case, 88 Ala. 144 (7 So. 46). Sale by seventeen-year-old girl under direction of parent. Cagle's case, 87 Ala. 93 (6 So. 300). Sale in back room of defendant's store, without knowledge or interest on his part, does not render him liable.Perkins's case, 92 Ala. 66 (9 So. 536). Statute not intended to interfere with bona fide sale of articles used for medical, toilet, or culinary purposes and which contain alcohol as a necessary ingredient.-Carl's case, 87 Ala. 17 (6 So. 118). See Compton's case, 95 Ala. 25 (11 So. 69). When state makes out a prima facie case, burden on defendant to show his authority to sell.-Tinker's case, 96 Ala. 115 (11 So. 383); Bogan's case, 84 Ala. 449 (4 So. 355). Void license no protection and may be collaterally attacked.-Russell's case, 77 Ala. 89. That the sale was in original imported packages is no defense since the act of congress approved August 8, 1890.-Tinker's case, 90 Ala. 638 (8 So. 814). 7353. (5077) (4037) (4806) (4133) (583) Forms of indict-(r.c.c.) ment for selling and violating special prohibitory laws; proof Liquors, Selling, Giving, Etc., Illegally. of selling.—In an indictment for selling spirituous, vinous, or malt liquors without license, it is sufficient to charge that the defendant sold spirituous, vinous, or malt liquors without a license, and contrary to law; and on trial, any act of selling in violation of the law may be proved; and for any violation of any special and local laws regulating or prohibiting the sale of spirituous, vinous, or malt liquors within the place specified, such form shall be held good and sufficient. (Form 100 [79].) (Feb. 16, 1867, p. 510.) Indictment need not allege name of person to whom liquor was sold.-Jones v. State, 136 Ala. 118 (34 So. 236). Defendant has no constitutional right to bill of particulars, showing the time and place or name of person to whom sale was made.-Jones v. State, 136 Ala. 118 (34 So. 236). An indictment in the alternative need not allege that each alternative act was unlawfully done; when indictment need not negative proviso in statute. Sims v. State, 135 Ala. 61 (33 So. 162). Defendant may be charged in the alternative that he "sold, gave away, or otherwise disposed of.”—MeClellan v. State, 118 Ala. 122 (23 So. 732). Indictment should allege that sale was "contrary to law."-Carson v. State, 108 Ala. 35 (19 So. 32). When necessary to aver liquor was drunk on or about the premises.-Ulmer v. State, 61 Ala. 208. The indictment must conform to the statute creating the offense. -McPherson v. State, 54 Ala. 221. When state not required to elect as to one of several counts.-Taylor v. State, 100 Ala. 68 (14 So. 875). If one of the alternatives in an indictment is bad it renders the whole count bad.-Allred v. State, 89 Ala. 112 (8 So. 56). Indictment for violating revenue law will support a conviction for retailing.-Lemons & Martin v. State, 50 Ala. 130. Sufficiency of evidence to support conviction; construction of dispensary law for Lauderdale county.-Mitchell v. State, 141 Ala. 90 (37 So. 407). An indictment which only charges more than the law requires is unobjectionable, provided the averments are sustained by the proof.-McCreary v. State, 73 Ala. 480. Indictment that defendant sold, prepared, or permitted to be taken, etc., is bad.-Kaisler v. State, 55 Ala. 64. Each alternative averment must state a cause of action.-Raisler v. State, 55 Ala. 64; Allred's case, 89 Ala. 112 (8 So. 56). Indictment for retailing, etc., in form prescribed by the Code. is sufficient. Bryan's case, 45 Ala. 86; Sills's case, 76 Ala. 92; McCreary's case, 73 Ala. 480. When defective.-Raisler's case, 55 Ala. 64. Indictment charging that defendant "did sell vinous or spirituous liquors without a license and contrary to law," sufficient for offense of violating local prohibitory laws.-Powell's case, 69 Ala. 10; Boon's case, Ib. 226; McCreary's case. 73 Ala. 480; Bogan's case, 84 Ala. 449 (4 So. 355); Olmstead's case, 89 Ala. 16 (7 So. 775); Williams's case, 91 Ala. 14 (8 So. 668); Compton's case, 95 Ala. 25 (11 So. 69); Cost's case, 96 Ala. 60 (11 So. 435). Does not cover giving away liquor under local law.-Williams's case, 91 Ala. 14 (8 So. 668). Includes intoxicating bitters when shown to contain spirituous, vinous, or malt liquors in appreciable quantity.-Brantley's case, 91 Ala. 47 (8 So. 816). 7354. (5078) (4038) (4205) Liquor to minor or person of intemperate habits; false statement as to age.-Any person who sells, barters, lends, exchanges, or gives spirituous, vinous, or malt liquors to a minor, without the consent of the parent or person having the management or control of such minor, unless it be upon the prescription of a physician; or who sells, barters, lends, exchanges, or gives spirituous, vinous, or malt liquors to a person of known intemperate habits. unless it be upon the prescription of a physician, must, on conviction, be fined not less than fifty nor more than five Liquors, Selling, Giving, Etc., Illegally. hundred dollars; and any minor who obtains any such liquor by means of a false representation as to his age must, on conviction, be fined not more than fifty dollars. (Form 101 [80].) (Mar. 18, 1875, p. 280, § § 1 and 2; Feb. 26, 1881, p. 50; Feb. 18, 1891, p. 1209.) Consent of parent to a sale to minor "whenever he wants it" is a general continuing consent; a sale by a clerk to a minor is protected by the consent of parent to principal.-Smith v. State, 132 Ala. 38 (31 So. 552). To authorize a conviction for sale to intemperate, three things must be shown; first, that he sold the prohibited liquors to the person named; second, that such person was of intemperate habits; third, that defendant had knowledge of such habits, and the burden is on the state to show all these facts.-McCormack v. State, 133 Ala. 202 (32 So. 268). Evidence to show knowledge of intemperate habits.-McCormack v. State, 133 Ala. 202 (32 So. 268). One acting as agent of the minor to procure whiskey is not guilty of selling whiskey to him.— Banks v. State, 136 Ala. 106 (34 So. 350). Indictment need not negative consent of parent or prescription of physician, but if it contains them it is the safer practice to prove them.-Heath v. State, 99 Ala. 179 (13 So. 689). Punishes sale with or without license.-Ulmer's case, 61 Ala. 208. The actual seller, whether owner of saloon, or employe, indictable.-Marshall's case, 49 Ala. 21. The requisition must be a verbal or written application or request to sell by the physician himself.-Bain's case, 61 Ala. 75. Proof of infancy, based upon recollection of witness as to former appearance of alleged minor.Weed's case, 55 Ala. 13. Defendant permitted to prove that minor was mature-looking person; but witness cannot be asked if he would not take him to be twenty-one years old.-Marshall's case, 49 Ala. 21; Freiberg's case, 94 Ala. 91 (10 So. 703). Charge asserting fact of minority is conclusive of defendant's intention, is erroneous.—Ib. Immaterial who owns liquor given to minor or intemperate person.-Hill's case, 62 Ala. 168. Sale made under honest, though mistaken, belief that minor was twenty-one years old, is excusable; but whether so made is a question for jury.—Adler's case, 55 Ala. 16; Freiberg's case, 94 Ala. 91 (10 So. 703). Voluntary drunkenness of defendant no defense or excuse.-Hill's case, 62 Ala. 168. Specific intent not necessary; gift or sale is evidence of intention.-Bain's case, 61 Ala. 75. To authorize a conviction for selling to a person of intemperate habits, these facts must be proved: A sale or gift to a person of intemperate habits, and knowledge in the seller or giver of such intemperate habits.-Jones's case, 100 Ala. 88 (14 So. 772); Collins's case, 83 Ala. 365 (3 So. 591); Tatum's case, 63 Ala. 147. Barkeeper selling to one who divides with or treats an intemperate person or a minor, at the bar, is guilty of selling to such intemperate person er minor.-Walton's case, 62 Ala. 197; Page's case, 84 Ala. 446 (4 So. 697). Or selling to a third person to whom, on suggestion of barkeeper, minor handed money for the purpose.-Lile's case, 88 Ala. 139 (7 So. 196). What does not constitute either selling or giving.-Young's case, 58 Ala. 358; Bryant's case, 82 Ala. 51 (2 So. 670); Coker's case, 91 Ala. 92 (8 So. 874). Sale of brandy peaches or brandy cherries preserved in spirituous liquors in appreciable quantity, within statute.-Ryall's case, 78 Ala. 410. That minor has been relieved of disabilities of nonage immaterial.-Coker's case, 91 Ala. 92 (8 So. 874). Aiding or abetting sale is sufficient.-Walton's case, 62 Ala. 197. What constitutes intemperate habits.-Tatum's case, 63 Ala. 147; Smith's case, 55 Ala. 1. Knowledge by defendant of one's intemperate habits necessary; but may be inferred by the jury from notoriety.-Smith's case, 55 Ala. 1; Tatum's case, 63 Ala. 147; Stalling's case, 33 Ala. 425. Proof of fact of intemperate habits.-Atkins's case, 60 Ala. 45. Is a collective fact to which a witness may testify.-Tatum's case, 63 Ala. 147; Smith's case, 55 Ala. 1. Whether a person of such known habits, is a question for the jury.-Elam's ease, 25 Ala. 53; Smith's case, 55 Ala. 1. Indictment in Code form sufficient; not necessary to negative either the consent of the parent or guardian or the prescription of a physician.-Heath's case, 99 Ala. 179 (13 So. 689); Freiberg's case, 94 Ala. 91 (10 So. 703); Tatum's case, 63 Ala. 147; Spigener's case, 62 Ala. 383; Atkins's case, 60 Ala. 45. Indictment alleging sale without pre |