Farrall v. State

32 Ala. 557

• Court: Supreme Court of Alabama
• Decided: June 15, 1858
• Status: Published

Opinion

RICE, C. J.

¥e are compelled to reverse tbe judgment, because tbe charge of tbe court authorized tbe jury to find tbe defendant guilty, without leaving it to them to determine whether tbe alleged misdemeanor was committed in tbe county in which tbe indictment was found, or within a year before tbe commencement of tbe prosecution. — Code, §§ 3374, 3514; Salomon v. The State, 27 Ala. 26; Brown v. The State, 27 Ala. 47; Huffman v. The State, 28 Ala. 48; same case, 29 Ala. 40.

[2.] A writing-school, though to continue for tbe term of twenty days only, is a school within the meaning of section 3280 of the Code. And it is a violation of that section, for any person who may be keeping fermented, vinous or spirituous liquors for sale, to sell such liquors, in this State, to any pupil of such sehool, who may at the time be a minor, “without the consent of the parent, or guardian, or the person having the charge of such” pupil.

[3.] The charge asked by the defendant was properly refused. “"Where the subject-matter of a negative averment lies peculiarly within the knowledg.e of the other party, the averment is taken as true, unless disproved by that party ;”jas in a criminal prosecution for a penalty, for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor. Here the defendant, if licensed by the consent of the parent, guardian, or person having charge of the pupil, has peculiar knowledge of it, and can show it without the least inconvenience; and the burden of proving the consent is on him, the consent being in the nature of a license to him. — 1 Greenlf. on Ev. (8th edition) § 79, and note 1.

Eor the error above specified, the judgment is reversed, and the eause remanded.