Daniel v. State , 149 Ala. 44 ( 1907 )

DOWDELL, J. —

The defendant filed a plea of misnomer to the indictment. Issue was joined on this plea. The evidence was in conflict. The court properly submitted the question to the jury.

The indictment contained three counts. The defendant moved to quash the indictment, and each and every count thereof. The court sustained the motion to quash as to the third count, but overruled it as to the first and second counts. The first count is in Code form and-unobjectionable. The second count is defective, but the proper mode of reaching the defect was by demurrer, and not by motion to quash. — Boulo v. State, 49 Ala. 22. Moreover, the motion to quash an indictment is, as a general rule, addressed to the discretion of the court, and in the present case, on the grounds predicated in the motion, the rule applies. — White v. State, 74 Ala. 31.

The evidence show's that the defendant was a merchant at Belle Sumter, Ala., in precinct 3, Jefferson county, and that he dealt in groceries and soft drinks; that one Jim Clark Avas a clerk in defendant’s store at said place; and that said clerk sold to the Avitness a liquor called “Hop-Ale,” or “Hop-Jack.” The two. important questions presented by the record are: First, can the defendant be convicted on proof of sale made by his clerk, Avithout proof that the defendant participated in the act or authorized the doing of it? Second, can the court say, as matter of laAv, that the liquor called “Hop-Ale,” or “Hop-Jack,” is a malt liquor, or that it is intoxicating?

As to the first question, in the absence of any evidence tending to sIioav that the defendant participated in the act of selling by said Clark, or that he authorized Clark to make the sale, and the mere fact that Clark Avas the defendant’s clerk, without more, is insufficient to sIioav this. The defendant could not be held criminally responsible for Clark’s act. — Seibert v. State, 40 Ala. 60; Nall v. State, 34 Ala. 262; Patterson v. State, 21 Ala. 571.

As to the second question: In Allred v. State, 89 Ala. 112, 8 South. 56, it was held that “malt liquors” included “ale,” and hence the courts judicially know ale to be a malt liquor. The courts, however, cannot judicially know that the liquor called “Hop-Ale,” or “Hop-Jack,” is the same as ale. The name would naturally indicate a difference. It was also said in Allred}s Case, supra, that “malt liquors” included “beer.” In the cases of State v. Starr, 67 Me. 242, and State v. McCafferty, 63 Me. 223, it was held that it was a question for the jury to determine whether a liquor called “Hop-Ale” was a malt liquor or intoxicating. In the case of State v. May, 52 Kan. 53, 34 Pac. 407, it was held that it was a question for the jury whether a liquor called “Hop-Tea” is intoxicating. In Barnes v. State, (Tex. Cr. App. 1898) 44 S. W. 491, it'was said a court does not judicially know that “Hop-Ale” is intoxicating. There must be affirmative proof to establish this fact, and, where the prosecuting witness testifies that he does not know whether this substance is intoxicating or not, a conviction cannot be sustained. In the case before us the liquor for the sale of which the defendant is prosecuted is called “Hop-Ale,” or “Hop-Jack.” We are quite certain that the court cannot judicially know that “Hop-Jack” is a malt liquor, or that it is intoxicating, and, under the above authorities, we are of the opinion that the court cannot say as matter of law that “Hop-Ale” is a “malt liquor,”- or intoxicating, and that the question is one of fact, which should be left to the jury. The evidence in the case before us, without conflict or dispute, showed that the liquor called “Hop-Ale,” or “Hop-Jack,” was not intoxicating.- The defendant proposed to show by the manufacturer of “Hop-Ale,” or “Hop-Jack,” that it was not a “malt liquor”; but this the trial court would not permit. The court should have allowed this proof to be made.

The questions above discussed were raised both on the introduction • of evidence and requested instructions to the jury. What we have said will sufficiently point out the errors committed by the trial court.

Reversed and remanded,

Tyson, C. J. and Haralson and Simpson, JJ., concur.