Levy v. State , 133 Ala. 190 ( 1901 )

SHARPE, J.

By an act approved February 28th, 1881, (Acts, 1880-81, p. 187), the sale of spirituous, vinous and malt liquors in Bibb county is prohibited. Section 5087 of the Code mates punishable as for a misdemeanor “any person who within the limits of any district in which the sale of spirituous vinous or malt liquors is prohibited by law, solicits, or receives any order for spirituous, vinous or malt liquors to be shipped or sent into such district,” etc.

The State’s witness testified on direct examination that defendant was a representative of a “whiskey house” in Birmingham, which city we judicially know to be out of Bibb county. He further testified that on one occasion defendant being in Bibb county asked Mm, the witness, if he could send him anything this time, that he, the witness, answered “yes, two quarts;” that meant two quarts of whiskey, and that he got the whiskey, and that his father paid for it. On cross examination the witness said “the way of it was that he asked defendant to send him two quarts and defendant ¡told him that he could not; that he, witness, was a minor, and that he could not send it to him without his father’s consent.” The apparent conflict between the first and last of these statements did not as matter of law, require the rejection of either statement though the same witness made them both, but the conflict was for the jury to pass upon. The first statement if believed might well have been interpreted by the jury as a solicitation by defendant of an order for the shipment of whiskey into Bibb county. ■

An actual 'shipment of liquor is not necessary to complete the offense pi’oMbited by the Code section referred to, as is assumed by charge 1 refused to defendant.

Judgment affirmed.