Davis v. State , 145 Ala. 69 ( 1906 )

DENSON, J.

The defendant was indicted and convicted for selling vinous, spirituous, or malt liquors in Wilcox county in violation of an act of the tleneral Assembly approved December 12, 1882, which act by its terms prohibits the sale of such liquors in said county. Acts 1882-83, p. 234. In the case of Watson v. State, 140 Ala. 134, 37 South. 225, this act was declared unconstitutional in part, but was expressly upheld as a constitutional enactment with respect of its provisions which relate to the kind of liquors for the sale of which the defendant wás convicted in this case. On the trial the defendant as1 sailed the constitutionality of the act by demurrer. The grounds of the demurrer, which present the proposition that, with, the portions of the act which have been declared invalid stricken out. it is not clearly manifest that the General Assembly would have enacted the law, are precluded by the former decision, and we see no reason for departing from the ruling there made.— Watson's case, supra. For obvious reasons it cannot be held that' the act of February 14, 1901, (Laws 1900-01, p. 1082), authorizing the establishment of a dispensary in the town of Camden operated a repeal of the prohibitory act of December 12,1882, as to that part of Wilcox county outside of the town of Camden.

The defendant was first indicted at the fall term, 1908, of the circuit court held for Wilcox county. At the fall tefm, 1904, the indictment was quashed for defects therein. The court ordered that another indictment for the same offense be preferred at the next term, and required the defendant to give bond for his appearance to answer such indictment. The grand jury at the spring term, 1905, preferred another indictment for the offense- charged in the first.- The entry of the record of facts shown in this' case was sufficient under section 4922 of the- code of 1896. — Roger’s case, 126 Ala. 40, 28 South. 619. The order quashing the indictment and ordering another indictment, with the entry of facts, by express provisions of section 5075 of the code of 18-96, eliminates the time elapsing between the preferring of the first indictment and the subsequent indictment from the time- limited for the prosecution of the offense last charged. Consequently there was no room for the operation of the statute ■of limitations in the case.

The defendant testified in his own behalf,- and denied that he sold any whislce-y to the State’s witness, Hugh Champion. Section 5086 of the code of 1896 makes it competent, upon the trial of any person for the violation of any law which prohibits the sale of vinous, spirituous, or malt liquors, to prove that such, person has obtained a license from the Internal Revenue Department of the United States to sell such liquors. The statute further provides that parol testimony may be received of the existence of such license; and, the defendant having exercised the privilege given him by the statute of testifying there could be no valid objection to making proof of the issuance of the license by him. — Smith’s case, 137 Ala. 22, 34 South. 396. If it was thought by the defendant that the question calling for proof of the license was too indefinite as to- time and place, he should have specified this as a ground of objection. The general objection did not raise the point.

We have found no error in the record, and the judgment of conviction is affirmed.

Weakley, C. J., and Haralson and Dowdell, JJ., concur.