Wade v. State

54 So. 171, 170 Ala. 32, 1911 Ala. LEXIS 7

Opinion

SIMPSON, J.

The appellant was convicted of the offense of selling spirituous., vinous or malt liquors contrary to law. The demurrer to the affidavit is not set out in the transcript proper, and therefore the refer- . ence to it in the bill of exceptions is not sufficient to authorize this court to consider it.—L. & N. R. R. Co. v. McCooi, 167 Ala. 644, 52 South. 656; Sivoly v. Scott, 56 Ala. 555.

There was uo error in the refusal by the court to exclude the testimony offered by the state. The witness Lambert stated distinctly that he bought the whisky from the defendant. The fact that the witness stated, on cross-examination, that he handed the money to the negro who was with him to pay for the whisky, did not make the buying any less his act. He went with the negro to the place of purchase, was present when the negro got the whisky for him, and paid his money for it according to his directions. This was a purchase by him. It matters not that nothing was said. His agent, standing in his presence, according to his directions,' handed the money to defendant, and defendant handed the whisky to said agent in his presence. That constitutes a sale, and it is not material whether the witness knew to whom the whiskey belonged. The defendant made the sale.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.