Carson v. State , 69 Ala. 235 ( 1881 )

SOMEBYILLE, J.

The appellant was convicted in this case of selling intoxicating bitters contrary to the provisions of a local or special prohibitory law. The law in question wras approved February 1st, 1871, and is entitled “ An act to prohibit the sale or otherwise disposing of spirituous, vinous or malt liquors, within one mile of the court house in the town of Ashville, in St. Clair county.” It prohibits the selling, giving or delivering to any person of “ spirituous, vinous or malt liquors, ale, lager beer or 'intoxicating bitters, in quantities less them forty gedlons,” within one mile from the court house of St. Clair county, in the town of Ashville. There are two provisos to the act, which except certain cases from its operation, not here necessary to be mentioned.

It is urged that this act is unconstitutional, as being violative of that clause of the constitution which provides that “each law shall contain but one subject, which' shall be clearly expressed in its title,” etc. — Con. 1875, Art. 4, § 2; Con. Í868, Art. 4, § 2. The grounds of this objection are, in our opinion, untenable. The. subject of the act has reference to the prohibition of the sale of certain liquors. This need not be an ■entire or total prohibition, .but it may be a partial one, or a mere regulation of the subject-matter only. Intoxicating bitters, too, may manifestly be included within the class of liquors described in the title. The purpose of this constitutional provision was to prevent the introduction, into the body of an act, of any such foreign or incongruous matter as may not reasonably be comprehended within the title, or be properly referable to it. It is not to be objected that the law contains various details, if they all relate to one general subject, and the title of the act itself is so definite as not to mislead or deceive. —Ex parte Pollard, 40 Ala. 77, and other authorities cited by the Attorney-General. See also Woodson v. Murdock, 22 Wall. 351; Dorsey’s Appeal, 72 Penn. St. 192; Mills v. Charleton, 9 Amer. Rep. 578.

The indictment charged a violation of this special law with sufficient definiteness. It was referred by its general tenor and further described by the date of its approval. It was unnec-' essary -to set forth the whole act, as is insisted on by appellant’s counsel. It was a public statute, of which the court was required to take judicial notice without being pleaded. Though local in its nature, it extended to all persons who might come within the territorial limits described, and to this extent it concerned the public generally. — 1 Whart. Law. Ev. § 293; Levy v. The State, 6 Ind. 281; Crawford v. Planter’s and Merchant’s Bank, Mobile, 6 Ala. 289.

It was unnecessary for the indictment to aver that the defendant did not come within the operation of the exceptions created by the provisos of the act. This was matter of defense not required to be anticipated by the prosecution, but which would more properly come from the defendant. The rule would, however, be otherwise in cases where exceptions are incorporated in the enactm-g clanse, .for then it would be necessary to negative them in order to bring the alleged crime within the words of the statute. — 1 Whart Cr. Law, § 379; 1 Bish. Or. Proc. §§ 631-633; Clark v. The State, 19 Ala. 552; Becker v. The State, 8 Ohio St. Rep. (N. S.) 391.

It was competent for the witness Yarbrough to testify to his opinion as to the intoxicating properties of the bitters proved to have been sold by the defendant. This is a matter of common knowledge, where a witness is shown to have had an opportunity, of personal observation, or of experience, such as to enable him to form a correct opinion. It is not required that' he should be a technical expert. — Merkle v. The State, 37 Ala. 139.

The evidence was properly excluded’ showing how the bitters were labeled. This was irrelevant, as it rendered them neither more nor less intoxicating. The actual properties of the beverage sold was the question submitted to the jury, not the represented properties.

The evidence in this case showed that the defendant was a licensed practising physician and that he prescribed the bitters which he is alleged to have sold, to a patient who was at the time under his treatment. It was also proposed to be proved, by expert medical testimony, tliat tliis was tlie proper scientific-treatment in the given case.

It was contended, under this state of facts, that if the appellant gave or sold the bitters in. question as a prescription, and in good faith, he would not come within the prohibition of the statute, and should be acquitted, and the correctness of this view is directly raised by the charges requested to be given attlie instance of the appellant.

We know of no principle of law which would authorize us to incorporate so important an exception into the statute. The facts of the case may have constituted a good reason why the grand jury should have refused to find a bill, but there is no exception made in the statute in favor of physicians, druggists, or any other persons whomsoever, and this court can not en-graft one in tlieir favor without the exercise of the legislative power, which it does not possess. The question presented is not a novel one, though not before decided in this State. Mr. Wharton.states the rule to be, that, “unless there is an express exception in the statute the fact that the liquor was bought for medicine is no defense.” — 3 Whart Amer. Law, § 2439.

In tlie case of the Commonwealth v. Kimball, 24 Pick. 366, the point was made, that where liquor was bought to be used bond fide for the purpose of medicine, the sale of it did not come within the purview of a prohibitory liquor law, general in its terms. Chief Justice Shaw observed in answer to this suggestion: “ If it were sufficient to avoid the prohibition of the statute, for the purchaser to say that the spirits were intended for medicine, it would, in effect, repeal the statute. But the decisive answer is that the legislature has made no such exception.” The same or similar points have been repeatedly set-tied in other cases. See State v. Brown, 31 Me. 522; Woods v. The State, 36 Ark. 36, (S. C. 38 Amer. Rep. 22); Wright v. The State, 101 Ill. 126, and other authorities cited in brief of Attorney-General, and in 3 Whart. Cr. Law, § 2439, note (q).

The application of any other rule would be fraught with difficulty, if not impracticability. The frequency of imposture-on the one hand, and abuse on the other, would be imminent,, and sagacious foresight in this respect may have been a potent, reason with the General Assembly for excluding exceptions, which found place in former statutes relating to the same subject-matter. We are not to be supposed as intimating that physicians or druggists would be prohibited, under such a statute as the one in question, from the bona fide use of spirituous liquors in the necessary compounding of medicines manufactured, mixed, or sold by them. This would not be within the evils intended to be remedied by such prohibitory enactments, nor even within the strict letter of the statute.

We discover no errors in any ruling of tbe Circuit Court, and its judgment is affirmed.