Abel v. State

Supreme Court of Alabama

Abel v. State

90 Ala. 631

CourtSupreme Court of Alabama

DecidedNovember 15, 1891

StatusPublished

Cited by15 cases

This text of 90 Ala. 631 (Abel v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abel v. State, 90 Ala. 631 (Ala. 1891).

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Opinion

COLEMAN, J-

The indictment charges the defendant with a violation of the Revenue Law, as a wholesale liquor-dealer. During the trial, on cross-examination, the defendant asked a witness, “ If it was not the reputation in the community that one Clark was at the time boarding at the defendant’s?” Upon objection, the court refused to permit the witness to answer. The rule is, that hearsay evidence (and such fe the evidence of reputation) is inadmissible, to establish any specific fact capable of direct proof by witnesses, speaking from their own knowledge; and when the rule is relaxed, it is from necessity alone.—Overstreet v. State, 3 How. (Miss.) 328; Wooster v. State, 55 Ala. 221. The evidence sought to be elicited by the question was both irrelevant and illegal.

To “ engage in, or carry on business,” has been uniformly construed as signifying “ that which occupies the time, attention, andlaborof men,for the purpose of a livelihood or profit.” u It is the business, the occupation, or profession, on which the law imposes the tax.” It has been held that the doing of a single act, pertaining to a particular business, will not be considered engaging in, or carrying on the business, yet a series of such acts would be so considered.—Lemons v. State, 50 Ala. 130. The same signification was applied in the case of McPherson v. State, 54 Ala. 224, where the court declared, “ It consists in engaging in, or carrying on the business of a wholesale dealer in vinous, spirituous or malt liquors, not in one, or . more acts of selling, without any intent to engage in or carry on the business.” One act may be sufficient to constitute an “ engaging in, or carrying on the business,” according to the intent with which the act is done, and other proof in the case. If a party makes all necessary preparations to carry on the business, holds himself out as a wholesale liquor-dealer, and solicits trade as such, and makes one sale in violation of the law, intending to continue the business, he is engaged in, or carrying on the business, within the meaning of the law.

The clerk or agent of one unlawfully engaged in the business of a wholesale liquor-dealer, may be convicted, upon proof of the unlawful acts of selling by him, although such agent or clerk may not have any pecuniary interest in the business, other than as mere clerk or agent.

The charges requested by defendant, construed in reference to the testimony, are not in accordance with these views, and were properly refused. Charge No. 3 is clearly an invasion of the province of the jury.

Affirmed.

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COLEMAN, J-

The indictment charges the defendant with a violation of the Revenue Law, as a wholesale liquor-dealer. During the trial, on cross-examination, the defendant asked a witness, “ If it was not the reputation in the community that one Clark was at the time boarding at the defendant’s?” Upon objection, the court refused to permit the witness to answer. The rule is, that hearsay evidence (and such fe the evidence of reputation) is inadmissible, to establish any specific fact capable of direct proof by witnesses, speaking from their own knowledge; and when the rule is relaxed, it is from necessity alone.—Overstreet v. State, 3 How. (Miss.) 328; Wooster v. State, 55 Ala. 221. The evidence sought to be elicited by the question was both irrelevant and illegal.

To “ engage in, or carry on business,” has been uniformly construed as signifying “ that which occupies the time, attention, andlaborof men,for the purpose of a livelihood or profit.” u It is the business, the occupation, or profession, on which the law imposes the tax.” It has been held that the doing of a single act, pertaining to a particular business, will not be considered engaging in, or carrying on the business, yet a series of such acts would be so considered.—Lemons v. State, 50 Ala. 130. The same signification was applied in the case of McPherson v. State, 54 Ala. 224, where the court declared, “ It consists in engaging in, or carrying on the business of a wholesale dealer in vinous, spirituous or malt liquors, not in one, or . more acts of selling, without any intent to engage in or carry on the business.” One act may be sufficient to constitute an “ engaging in, or carrying on the business,” according to the intent with which the act is done, and other proof in the case. If a party makes all necessary preparations to carry on the business, holds himself out as a wholesale liquor-dealer, and solicits trade as such, and makes one sale in violation of the law, intending to continue the business, he is engaged in, or carrying on the business, within the meaning of the law.

The clerk or agent of one unlawfully engaged in the business of a wholesale liquor-dealer, may be convicted, upon proof of the unlawful acts of selling by him, although such agent or clerk may not have any pecuniary interest in the business, other than as mere clerk or agent.

The charges requested by defendant, construed in reference to the testimony, are not in accordance with these views, and were properly refused. Charge No. 3 is clearly an invasion of the province of the jury.

Affirmed.

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90 Ala. 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abel-v-state-ala-1891.

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