Roberson v. State , 100 Ala. 37 ( 1893 )

HARALSON, J.

The defendant was prosecuted for “selling, giving away or otherwise disposing of spirituous, vinous or malt liquors, without a license and contrary to law.” The proceeding is under a local prohibition law for the town of Columbiana. Acts 1880-1, p. 148.

The evidence in the case does not tend to show that the defendant sold the whiskey, which he is charged with having disposed of; and, if guilty at all, it must be for having-given it aAvay, or with having otherwise disposed of it, in a manner not allowed by law. A sale imports a transfer of the property upon a valuable consideration; and a gift, a transfer of it, gratuitously, or upon a good, as contradistinguished from a valuable consideration. “The more general words, ‘or otherwise disposed of’ (as used in this statute) following the more specific or particular words, ‘sell or give away’ uponasettled'ruleof statutory construction,—a larger legislative intention not being clearly expressed,—must be construed as extending only to a disposition ejusdem generis with a sale or gift. They are not to be extended to any and every act which may be said to be a disposition.”—Amos v. The State, 73 Ala. 498; Reynolds v. The State, Ib. 3. Whether or not the liquor was given away by defendant, or. whether his disposition of it, if he made any, was unlawful, was a matter for the determination of the jury from all the evidence, under proper instructions from the court. We can not say there was no evidence tending to show that defendant gave the whiskey, or disposed of it unlawfully, to Joe Tinney. Tinney testified, that going to defendant’s barber shop, he asked him, if he had any whiskey, to which defendant replied, he did not, but there was some in a box, there, iñ the shop, which belonged to some other parties; that he then told defendant, if the whiskey did not belong to him, he would take a drink, and did so, put the bottle back in the box and walked out, without saying any thing more, or paying anything to defendant for the drink; that he had several times before, gone into defendant’s shop to be shaved and had gone to this same box, in which there was a bottle of whiskey from which he would take a drink, without saying anything to defendant about it; that the box was a small one, that defendant used as a waste-basket. On this evidence, inferences of defendant’s guilt might fairly have been drawn. The procedure favors a device, on the part of defendant, to evade the law, in treating those with a drink who favored him with their patronage, and it requires considerable explanation and protestation of innocence, to keep one from so believing. It was improper, therefore, to give the general charge, as requested by defendant.—Coker v. The State, 91 Ala. 92.

The defendant’s account of the transaction was, that when Tinney came and asked for the whiskey, he told him he had none ; that there was some there in a box that belonged to other parties, and Tinney replied, that it was all right, if it was not his, he would take a drink; that Tinney went to the box, but he did not know whether he got. the whiskey or not; that different persons, his customers, left their whiskey in his shop, but that he had never sold, given or otherwise disposed of any whiskey to Tinney; that the whiskey belonged to one Shortey, who was sitting behind the door in his shop at the time.

If the defendant kept the whiskey of his customers in his barber shop, for their convenience to come and drink when they chose, and he allowed others of his customers to come, and ask for whiskey, and he would tell them he had none, but there, in a box, was the whiskey of these other customers, and those calling for it would, with the knowledge of the defendant, without any dissent from him, help themselves, this would be an illegal disposition of it,—even if defendant had no pecuniary interest or ownership in it,—such as would amount to an evasion and violation of the law. This barber shop was a public house within the prohibition district, and in it, unlike at a man’s private dwelling, in social life, the owner can not sell, give away or otherwise dispose of, spirituous liquors, in the manner condemned by the statute, not even to the extent of a drink.—Baine v. The State, 61 Ala. 75; Reynolds v. The State, 73 Ala. supra.

The evidence tends to show, that the whiskey drank by Tinney belonged to Shortey, who was in the barber shop at the time it was pointed out to Tinney by defendant, and it does not show that Shortey claimed the whiskey, or said or did any thing to indicate that he owned or controlled it, and defendant said nothing, himself, to'Shortey, but pointed it out to Tinney, and, there is no evidence that Shortey was engaged in the illicit sale of liquor.

The charges asked and refused, are either abstract and misleading, in hypothesizing facts not in evidence, or they ignore all those phases of the evidence, which tend to show, that the whiskey was deposited in defendant’s barber shop with his knowledge and consent, and that he assumed the control and disposition of it to his customers, other than those to whom it is said to have belonged, when they came and asked for it, and that they drank it with his knowledge and consent, and without any protest from him, or in this particular instance, from Shortey, who was present when Tinney called for a drink, and were properly refused.

Affirmed.