Johnson v. State

Supreme Court of Alabama

Johnson v. State

44 Ala. 414

CourtSupreme Court of Alabama

DecidedJune 15, 1870

StatusPublished

Cited by7 cases

This text of 44 Ala. 414 (Johnson 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

Johnson v. State, 44 Ala. 414 (Ala. 1870).

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Opinion

B. F, SAFFOLD, J.

The indictment charged that the defendant “ did distill vinous or spirituous liquors without license, and contrary to law.” The offense is, engaging in, or carrying on, a business for which a license is required, without first obtaining the license. — Acts 1868, p. 330, § ill. When a new offense, unknown to the common law, is created by statute, its constituents, if specified in the act,'must be embodied in the charge. — Eubanks v. The State, 17 Ala. 181. The indictment failed to charge an offense.

The second and third charges asked by the defendant, and given, correctly express the law of the case. A distiller is one whose occupation is to extract spirit by distillation. — (Web. Die.) To constitute occupation some time is a necessary ingredient. It need not be protracted, but must not be momentary. The intention must govern, and must be ascertained by the jury. If the profit i§ the inducement, a very little time will suffice,

[417]*417It was not necessary to prove both of the defendants guilty in order to conviet one, but as they were jointly indicted, if the proof had shown only the commission, by each, of a separate offense, a verdict could not have been rendered against either, or both. — Elliott v. The State, 26 Ala. 78. The charge refused was irrelevant, as no testimony was introduced tending to implicate the defendant drew.

The judgment is reversed and the cause remanded.

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B. F, SAFFOLD, J.

The indictment charged that the defendant “ did distill vinous or spirituous liquors without license, and contrary to law.” The offense is, engaging in, or carrying on, a business for which a license is required, without first obtaining the license. — Acts 1868, p. 330, § ill. When a new offense, unknown to the common law, is created by statute, its constituents, if specified in the act,'must be embodied in the charge. — Eubanks v. The State, 17 Ala. 181. The indictment failed to charge an offense.

The second and third charges asked by the defendant, and given, correctly express the law of the case. A distiller is one whose occupation is to extract spirit by distillation. — (Web. Die.) To constitute occupation some time is a necessary ingredient. It need not be protracted, but must not be momentary. The intention must govern, and must be ascertained by the jury. If the profit i§ the inducement, a very little time will suffice,

[417]*417It was not necessary to prove both of the defendants guilty in order to conviet one, but as they were jointly indicted, if the proof had shown only the commission, by each, of a separate offense, a verdict could not have been rendered against either, or both. — Elliott v. The State, 26 Ala. 78. The charge refused was irrelevant, as no testimony was introduced tending to implicate the defendant drew.

The judgment is reversed and the cause remanded.

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Bluebook (online)

44 Ala. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-ala-1870.

Opinion

B. F, SAFFOLD, J.

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