Mulvey v. State , 43 Ala. 316 ( 1869 )

PETERS, J.

Selling spirituous liquors without a license is a misdemeanor. It is a crime below a felony. In misdemeanors, all who knowingly and willingly concur in the acts which constitute the violation of the law, are aiders and abettors, and they are guilty. In all crimes under the degree of felony, all persons who concurred therein, are guilty as principals, if guilty at all. — Rev. Code, § 3542 ; 4 Bl. Com. p. 36, marg.

It has been settled that, where a prize fight takes place, and a number of persons are assembled to witness it, if they have gone thither for the purpose of seeing the combatants strike each other, and were present when they did so, they are all in point of law guilty of an assault; and there is no distinction between those who concur in the act, and those who fight; for if several are i'n concert encouraging one another and co-operating, they are all equally guilty, though one only committed the assault.—Rex v. Perkins, 4 C. & P. 537; S. C., 29 Eng. Com. Law R. 364; 1 Lewin, 17; S. C., 34 Eng. Com. Law R. 539; 1 Russell Cr. 753; The State v. Lymburn, 1 Brev. 397. This is a general principle, and is properly applicable to all misdemeanors. Here was, undoubtedly, a violation of law. As a general principle, when the wife acts under the coercion of the husband, in misdemeanors, she is not to be held responsible for her acts. Criminally, she is not guilty. 1 Russell Cr. 18, marg.; Davis v. The State, 15 Ohio, 72; 1 Hale, 45; 4 Bl. Com. 28.

In this case, it seems that the wife did not move in the matter until the husband “ directed” her to let the parties, who had come in to drink, have the whisky. She obeyed his directions, which were his commands. She furnished the whisky to Collins and his friend, as the husband had ordered her to do. They drank it and paid for it, in his presence and without his objection. By his conduct in this case, he made his wife’s act his own. In judgment of law, it was he that violated the law, and not the wife. The first charge asked of the court is opposed to these principles. It was therefore properly refused.

The second charge was also properly refused. The revenue act does not repeal the section of the Code which makes retailing an offense. It only repeals the laws upon the subject of “taxation in this State,” and not the law upon the subject of crimes. — Eevenue Law, 1868, p. 46, § 136; Eev. Code, § 3618.

The defendant below, the appellant in this court, was, therefore, properly convicted, and the judgment and sentence of the court below are affirmed, at appellant’s costs; and that court will cause the same to be carried into effect, as required by law.