Lawson v. State

55 Ala. 118

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRICKELL, C. J. —

Betailing spirituous liquors without license, is an offense punishable under the statute. — R. C. § 3678. A single act of illicit retailing constitutes the offense, and each separate act is indictable. The engaging in, or carrying on the business of retailing, without license, is another offense — a violation of the revenue law — differently punishable, and not capable of commission by a single act.— Harris v. State, 50 Ala. 127; Weil v. State, 52 Ala. 19. The indictment charges the latter, not the former offense. The only evidence given in support of it, was a single act of retailing ; and on such evidence, the court erred in instructing the jury, if they believed it, they must find a verdict of guilty. The distinction between the two offenses, and the forms of indictment for each, and the nature aijd character of evidence to support the different accusations, is apparent from the authorities to which we have referred.

The judgment must be reversed, and the cause remanded. Let the appellant remain in custody, until discharged by due course of law.