Sampson v. State , 107 Ala. 76 ( 1894 )

HEAD, J.

The indictment in this case charges that tlie defendant engaged in, or carried on, the business of a retail dealer in spirituous, vinous or mal-t liquors at a place not in any city, town or village, without a license and contrary to law. On this indictment the jury rendered the following verdict: “We, the jury, find the defendant guilty as. charged in the indictment, and assess his fine at $375.00.” The appellant moved the trial court to arrest the judgment, and assigned the following grounds:

1st. The indictment charges, in the disjunctive, two or more offenses, and the verdict of the jury is a general finding of guilty as charged in the indictment.

2nd. The verdict fails to show what offense the jury found the defendant guilty of.

• 3rd. The verdict is insufficient to uphold a judgment of conviction in this : the finding of the jury is general— guilty as charged in the indictment — without specifying which offense they found him guilty of, while the indictment charges more than one offense, the punishments of which are different.

The court overruled the motion, and its ruling is assigned as error.

Section 629, subdiv. 3, Code of 1886, provides that the State license for retailing spirituous, vinous or malt liquors in any city, town, village, or any other place of less than one thousand inhabitants, shall be one hundred and twenty-five dollars; but that dealers in lager beer, exclusively, shall be charged one-fourth of the above rates.

Section 3892 of the Code, 1886, provides that any person who, after the 15th day of January in any year, engages in, or carries on any business for which a license is required, without having taken out such license, must, on conviction be fined three times the amount of the State license. The fine then for engaging in or carrying on the business of a retail dealer in vinous, spirituous or malt liquors, otherwise than as a dealer in lager beer exclusively, is fixed at three hundred and seventy-five dollars (three times State license), while the fine for dealing in lager beer, exclusively, is fixed at one hundred and twenty-five dollars (three times State license). The verdict 'shows then with sufficient certainty the offense of which the jury found the defendant guilty.—Davis v. State, 52 Ala. 357. Malt liquor is a broader term than lager beer, and includes other beverages, as ale and porter. The fine for dealing in either of the latter ttvo liquors, without a license would be $375. To charge a person then with engaging in or carrying-on the business of a retail dealer in malt liquors is not the same thing as to charge him with dealing in lager beer, exclusively. Conceding that, under the indictment in this case, the defendant could have been convicted of dealing in lager beer, exclusively, the fine for-that offense is absolutely fixed by law, and when assessed by the jury would indicate with as much certainty the finding of.the jury on the facts as if they had made a-special finding. It is conceded by appellant, that it is not necessary that the jury should .express, ipsissimis verbis, the offense of which thejr find the defendant guilty, and that if the duty of fixing, the punishment for the offense charged rests with the jury, and, in discharge of their legal duty, they fix by their verdict, a punishment appropriate to only one of the offenses charged, this is equivalent to an express finding that the defendant is guilty of that particular offense. The principiéis decided in Davis’s Case, 52 Ala. 357. Section 4385, Code of 1886, authorizes the joinder, in the same count, of. offenses which at common law could only be joined in separate counts. See cases cited in note to section 4385. The decisions there as to general verdicts, where the indictment contains two or more counts, are applicablé to this case. In Crawley’s Case, 37 Ala. 152, the following language is used : "After an elaborate and careful review of the authorities we feel safe in announcing the conclusion, that two offenses committed by -the same persons may be included in the same indictment, where they are of the same general nature and belong to the same family of crimes ; and where the mode of trial and. nature of punishment are also the same; and also that a general verdict of guilty where such offenses are joined is no ground for an- arrest of judgment, or of error, when the sentence pronounced does not impose a greater punishment than is prescribed for one offense.” — See-also Johnson’s Case, 29 Ala. 62; 1 Brick. Dig. p. 500; Johnson’s Case, 50 Ala, 456 ; Mooney’s Case, 8 Ala. 328 ; Ward’s Case, 22 Ala. 16; Wooster's Case, 55 Ala. 217 ; 1 Bish. Crim. Procedure (3d Ed.), §§ 450 to 453, inclusive. We have carefully examined the authorities cited by appellant, and find them not inconsistent with the views heroin expressed.

The only other question, raised for the first time in this court, is on the organization of the grand jury. It appears from the record that Anderson J. Job was drawn and summoned as a grand juror, and Andrew J. Job was empanelled as a grand juror, and participated in the finding of the indictment. Section 4445, Code of 1886, provides that no objection can he taken to an indictment, by plea in abatement, or otherwise, on the ground that miv member of the grand jury was not legally qualified, or that- the grand jurors were not legally drawn or summoned, or on any ground going to the formation of the grand jury, (except that the jurors were not drawn in the presence of the officers designated by law. See also section 4446. See case's cited in note to section 4445; also 89 Ala. 40 ; 82 Ala. 68 ; 83 Ala. 9.

Affirmed.