Smith v. State , 132 Ala. 38 ( 1902 )

McCLELLAN, C. J.

— Tlie appellant was convicted of tlie offense of selling liquor to a minor. The sale and tlie minority of the purchaser were clearly proved, and not at all denied by the defendant. But the 'evidence for the defendant Avent to show that the father of the minor Avas dead, that at and before the time of the sale he Avas living with his mother, that a month or so before the sale charged in the indictment Gartreli Rains, the minor in question, and his mother passed by the saloon of the defendant in a wagon or buggy, that they stopped in front of the saloon,-and said Gartreli Avent into the saloon and called on defendant for a pint of whiskey; that defendant told him that he could not sell him, that he Avas under age, that Gartreli replied my mother is out there, that defendant stepped out onto the porch in front of the saloon and asked Mrs. Rains if it was all right to sell her son whiskey; that she replied: “It is all right; let him haAre it AArhenever he wants it; he does not drink much,” and that this -consent or authority had newer been withdrawn. The time and venue of the sale were proved. On this state of evidence the court gave the affirmat-rre charge for .the State, and upon that action arises the question Avhether a general or continuing consent of the parent for sales of liquor to he made to the minor child is -such a consent as brings the case within the exception of the statute. We quote so much of the section of the Code as bears upon the case: “Any person who sells, barters, exchanges or gives spirituous, vinous, or malt liquors to a minor without the consent of the parent or person having the management or control of such minor, * * * must, on conviction, be fined not less tban fifty, nor more than five hundred dollars. * * * — Code, § 5078. This statute does not in terms require that the consent to bring a given case within the exception must be made with special reference to the sale involved in such case, nor does its language afford any basis for a construction to that effect; nor does it at all, in terms or by implication, negative the efficacy of a general consent to a series of sales or to all sales. The statute indeed neither requires nor admits of construction in the point under consideration. Its language is plain and unambigious to the exclusion from its operation of all sales to minors made with the consent of their parents;, and it would be wholly unwarranted and violative of that elementary rule which restricts the operation of penal enactments to the cases covered by the letter of them to say that the consent stated without limitation or qualification must be so limited and qualified as to mean a consent to a single act, transaction, or occasion. One may as well and efficaciously consent to a series of acts, or to a course of dealing for an indefinite time or for a time limited by the period of minority of another, as he may to a single act; and to hold that the legislature intended one sort of consent and not consent generally would be to declare that the lawmakers did not intend what they have said, and this upon the sole ground that w.e deem it unwise to give their plainly expressed intent its due effect. We have nothing to do with the wisdom or unwisdom of enactments; and we are by no means authorized to wrench and contort their language out of its well understood significance for the purpose of subjecting persons to their penalties who are not embraced in their terms for that it may seem to us that their operation according to the plain and usual meaning of the ordinary words they employ would be detrimental to the public good as we conceive that good to be. The Supreme Court of Georgia has adopted a contrary view (Gill v. State, 86 Ga. 751) ; but notwithstanding our respect for that court and for the learned judge who delivered the opinion (Chief Justice Bleckley) we cannot follow them, but adopt the conclusion on this subject of the Supreme 'Court of Arkansas (Muscowits v. State, 49 Ark. 170), that the consent was a continuing authority for the sale of the liquor to the minor.

We have treated this case as if the sale charged had been made directly by the proprietor of the saloon to whom the consent was given, because a consent to him covers a sale made by him through his clerk to whom the fact of consent given was communicated at the time it was given.

The court erred in giving the affirmative charge for the State.

Reversed and remanded.