Weed v. State

55 Ala. 13

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

Opinion

MANNING, J. —

Section 3619 of the Revised Code makes it penal to sell, give, or deliver any vinous, fermented, or spirituous liquors, “to any minor, apprentice, student, or pupil,” &c., “ without the consent of the parent, guardian, master, or other person having the legal charge of such minor, apprentice, student, or pupil,” &c. The indictment against appellant is, that he “ sold, gave, or delivered to one John Law, a minor, vinous, fermented, or spirituous liquors, without the consent of the parent, guardian, or person having the legal charge of the said John Law,” &c. And this is exactly according to the form prescribed in the Revised Code of an indictment for this offense, except that the form does not contain the word “ legal ” before charge. A demurrer to the indictment was overruled; and it is insisted that this was erroneous, because the indictment omitted the word “ master,” used in the section creating the crime. It is true that, in Bryan v. The State (45 Ala. 86), it was held, that the omission of the word “master,” and of the word “legal,” in the similar indictment in that case for selling spirituous liquors to a minor, made it insufficient, although neither word was contained in the form prescribed by the Code. We cannot adopt that ruling. “ Master,” in the statute, is introduced in relation to “ apprentice,” and, perhaps, “ student or pupil;” and certainly may not be carried into the indictment, when the offense charged is the sale of the forbidden liquor to a minor. Indeed, since master, as used in the section, comes under the general description of a “ person having the charge of such . . apprentice, student, or pupil,” and is not contained in tbe form of indictment tbat bas been provided by tbe legislature for tbe offense, we are of opinion tbat tbe omission of it from tbe indictment would not vitiate, even if tbe charge was of a sale of sucb liquors to one of them. There was no error in overruling tbe demurrer. Tbe case of Bryan v. The State is overruled.

2. There was no objection to tbe testimony given, probably with reluctance, by tbe minor Law, tbat be was not, when be testified, twenty-one years old. Tbe sale of spirits to him, which was tbe cause of tbe prosecution, took place two years before tbat time; so tbat, in tbe absence of any evidence to tbe contrary, tbe fact of bis minority at tbe time of sucb sale was established, if tbe jury did not disbelieve tbe witness. In reference to tbe testimony of Bell, tbe uncle of Law, counsel are in error, in treating it and arguing upon it as secondary, or hearsay evidence. We are not under tbe necessity of considering whether or not it was admissible on tbe ground of tbe well known exception to tbe general rule, when matters of pedigree are to be proved. Mr. Bell testified tbat, when be came from South Carolina to Alabama, twenty years and a few months before tbat time, be found John Law a small infant less than one year old. True, be could not say what bis age was exactly, but be did testify: “ Judging from bis size and appearance when I first saw him, twenty years ago last fall, I can and do say, tbat be is not, to tbe best of my belief, twenty-one years of age now.” The indictment in tbe cause was found by tbe grand jury eighteen months before this testimony was given, and tbe sale of tbe liquor was proved to have been made in tbe spring before. It was shown tbat Law’s parents were still living, and resided in tbe county, whence it was further supposed tbat there “ was some sort of record of Law’s age also within tbe reach of tbe courtand thereupon tbe testimony of Bell was objected to, as secondary evidence only. But the fact tbat tbe parents might be able to prove tbe date of Law’s birth with more exactness than Bell could, does not make bis testimony what is called secondary evidence. Although it might not be so satisfactory as theirs, it is of tbe same nature — original, direct testimony of what be saw of a child tbat bad grown up from a small infant within bis view. Tbe objection to tbe testimony was, therefore, properly overruled.

3. It is not error on tbe part of a j adge, in charging tbe jury, to call their attention to tbe consequences to society, and especially to tbe evil to tbe youth of tbe country, of suffering tbe retailers of spirituous liquors to sell such liquors to them; or to inform the jury tbat if, upon tbe evidence, they find the defendant guilty, they should impose such a fine upon him as would deter him and others from thus violating the law hereafter. This but expresses the object of the law; and we do not find that, in explaining it to the jury, the bounds were transcended which are necessary to prevent a presiding judge from invading the province of the jury, or doing injustice to a defendant on trial.

Let the judgment of the Circuit Court be affirmed.