Morgan v. State

81 Ala. 72

• Court: Supreme Court of Alabama
• Decided: December 15, 1886
• Status: Published

Opinion

CLOPTON, J.

— The indictment, which charges the defendant with selling vinous or spirituous liquors without a license, is framed in accordance with the provisions of section 4806 of the Code, 1876. The solicitor having announced, after reading the indictment to the jury, that he was proceeding against the defendant for a violation of “An act to regulate the sale, giving away, or otherwise disposing of spirituous, vinous or malt liquors, or intoxicating bitters, or patent medicines having alcohol as a base, in Calhoun county,” introduced in evidence against the objection of defendant, the. record of the Probate Court, showing that an election was held in compliance with the requirements of the act, and resulted’ in favor of prohibition. — Acts 1882-3, p. 278. In Miller v. Jones (in MSS.), we considered an act, the name of the county being changed, substantially the same in respect to the title and the provisions of the enactment, — the one is a copy of the other. On the authority of that case, we hold the act in question to be unconstitutional. It is useless to repeat the reasons. The record was improperly admitted.

We would remand the case if there was any evidence tending to show that the defendant had violated the general law. But the only act of defendant appears from the evidence to have been done as the agent or assisting friend of the witness, the defendant not being interested in the liquor, the sale, or the money paid for it. This we have held insufficient.— Campbell v. State, 79 Ala. 271.

As the defendant can not be convicted, either under the special act or the general law, the judgment is reversed, and an order here made discharging the defendant.