Martin v. State , 59 Ala. 34 ( 1877 )

STONE, J.

— The present indictment was found and tried in July, 1877, under section 3618 of the Revised Code. The indictment is in the exact language of form 30 of that Code-for retailing spirituous liquors without license, and is good and sufficient under that statute.

Our statutes have carefully discriminated between the two offences — one for “ retailing spirituous liquors without license,” under section 3618, and the other under the clause of the revenue law which forbids the “engaging in the business” of retailing without a license. Under the one, a conviction may be had for a single offence. Under the other, it is held that the accused, to be guilty, must engage in the business of retailing. “The term business, as here used, is the synonym of employment, signifying that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.” — See Mulvey v. The State, 43 Ala. 316; Lillensteine v. The State, 46 Ala. 498; Campbell v. The State, 46 Ala. 116; Hafter v. The State, 51 Ala. 37; Weil v. The State, 52 Ala. 19.

In the present case, the sale, if it be a sale, was made by the agent of a corporation to one or more of the stockholders, or members. In such case, if it was an offence in the corporation to sell, it was an indictable offence in the agent by whom the act was done. An agent can not justify an act prohibited by law, by showing he was only carrying out the will of a principal, unless that principal had authority to do the act complained of.— Winter v. The State, 30 Ala. 22.

A sale may be defined to be a transfer of ownership from one person to another, upon a valuable consideration paid or promised. In Benjamin on Sales, § 1, it is said: “ To constitute a valid sale, there must be a concurrence of the following elements, viz: First, parties competent to contract; second, mutual assent; third, a thing, the absolute or general property in which is transferred from the seller to the buyer; fourth, a price -in money paid or promised. . . The third essential is, that there should be a transfer of the absolute or general property in the thing sold.”- Whenever the ownership is changed, this essential of the contract is complied with.

In the present case, there can be no question that the ownership was changed. The spirituous or vinous liquors were the property of the corporation. By the sale they became the property of an individual, for a valuable consideration paid by the individual member to the corporation aggregate.

The ruling of the City Court was free from error, and its judgment is affirmed.