Weed v. The State

Weed v. The State. Indictment against Betailer of Spirituous Liquors. 1. Sufficiency of indictment. — An indictment for selling liquor to a minor (Rev. Code, § 361Í1), which alleges that the sale was made “without the consent of the parent, guardian, or person having the legal charge of the said ” minor, is not demurrable, because it omits the word master after the word guardian, as used in the statute. (Overruling Bryan v. The State, 45 Ala. 86.) 2. Proof of infancy. — An uncle of the youth to whom the liquor was sold, having known him since infancy, may testify, “judging from his size and appearance when I first saw him, twenty years ago last fall, I can and do say, that he is not, to the best of my belief, twenty-one years of age now; ” such testimony is not.secondary evidence; nor is it rendered inadmissible, because the parents of the minor, who are shown to reside in the county, are not introduced as witnesses. 3. Charge to jury as to evil consequences of crime, and authorizing fine to repress it. — In charging the jury, on a trial under an indictment for selling liquor to a minor, the judge may properly call their attention to the evil consequences resulting to society from that offense, and instruct them that, if they find the defendant guilty, they should impose on him such a fine, not exceeding the statutory limit, as may deter him and others from future violations of the law. Prom tbe Circuit Court of Talladega. Tried before tbe Hon. Geo. H, Craig. Geo. W. PaesoNS, for tbe defendant. — 1. Tbe demurrer to tbe indictment ought to have been sustained. — Bryan v. The State, 45 Ala. 86. 2. Tbe objections to Bell’s testimony were well taken. He was allowed to state bis opinion, wbicb was very indefinite, and at best but secondary evidence; while tbe parents of tbe alleged minor were not introduced, although it was shown that they resided in tbe county; and Law himself testified as to bis own age, “ from tbe family bible at home.” Tbe law requires tbe best evidence of wbicb tbe case is susceptible. — Morton v. The State, 30 Ala. 527; Scales v. Desha, 16 Ala. 308; Glover v. Millings, 2 S. & P. 28. 3. Tbe charge of tbe court to tbe jury reads more like a speech for tbe prosecution, than a calm statement of tbe principles of law appbcable to tbe case. It is argumentative, evasive, and calculated to mislead tbe jury, if it does not invade their province; and it consists largely of statements about matters as to wbicb there was no evidence.— Oothrane v. Moore, 1 Ala. 423; Salomon v. The State, 28 Ala. 83; 1 Brickell’s Digest, 338, § 41. That it did influence tbe jury greatly to tbe prejudice of tbe defendant, is shown by tbeir verdict fining bim 1500, tbe limit of tbe law, wben there were no circumstances of aggravation in the case, and they might well have believed, from tbe evidence, that he acted in good faith, and without any criminal intent. Jno. W. A. SANFORD, Attorney-General, for the State.— 1.The indictment pursues the statutory form, and must be deemed sufficient. — Rev. Code, § 4141; Form No. 31, p. 811. 2. Questions of pedigree, including births, marriages, deaths, &c., may be proved by hearsay evidence. — 1 Greenl. Ev. §§ 103,104; Childress v. Culler, 16 Missouri, 2A-47. The witness Bell stated the facts on which his opinion was founded, and which showed that he was competent to testify as to the age of Law. 3. The exception to the charge of the court is general, and too indefinite. — Chatteaux v. The Stale, 52 Ala. 388; Jacobson v. The State, at the present term. [MAJORITY — MANNING, J. —] 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. 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. 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.