Lane v. City of Tuscaloosa , 12 Ala. App. 599 ( 1914 )

BROWN, J.

This prosecution was commenced before the recorder’s court of the city of Tuscaloosa March 27, 1914, for a violation of an ordinance of that city prohibiting- keeping or having in.possession for sale spirituous, vinous, or malt liquors. The appellant was convicted on the trial in the recorder’s court, and appealed to the county cóuft, where he was again convicted, and from that judgment of conviction he prosecutes this appeal.

The evidence was undisputed that the appellant’s house was searched by the police authorities of the city on March 24,1914, under a search warrant, and that the officers found 21 half pints of “Paul Jones Whisky” concealed in a davenport; that only a few days before the search one Crider, who was examined as a witness for appellee, bought from the appellant 2 half pints of whiskey at appellant’s house, and paid him $1 therefor. The appellee also offered in evidence the book of ordinances of the city of Tuscaloosa, containing the ordinance under which the prosecution was commenced, which showed on its face that it was adopted on September 16, 1909, approved by the mayor on September 17, 1909, and published in the Times-Gazette, a newspaper published in the city of Tuscaloosa, on September 18, 1909, covering the offense of which appellant was convicted.

The appellant, on the authority of Excelsior Steam Laundry Co. v. Lomax, 166 Ala. 612, 52 Sbuth. 347, and Adler v. Martin, 179 Ala. 97, 59 South. 597, insists that the court should have given the affirmative charge requested by him in writing, because it was not shown that the ordinance was in forme at the time of the alleged offense.

There was no dispute that the ordinance hook offered in evidence was the regular ordinance book of the city of Tuscaloosa. In fact, this was admitted by the appellant, and the ordinance, as stated above, showed on its face' that it was passed, approved" and published prior to the time of the offense, and under the statute it took effect “from and after its publication.” — Code, § 1258. “When things are once proved to háve existed in a particular state, thev are presumed to have continued in that state until the contrary is established by' evidence, either direct or presumptive.” — Jones on Evidence, § 58; 22 Am. & Eng, Ency. Law (2d Ed.) 1242; Michael v. State, 163 Ala. 425, 50 South. 929; Code, § 1259.

This proof distinguishes this case from the authorities cited and relied on by appellant.

The evidence showing that liquors in unusual quantities, considering the kind and nature of the packages, were found concealed in appellant’s house in a davenport, an unusual place of concealment, in connection with the evidence that he had made a sale at his house a short time previous to the commencement of the prosecution, justified the submission of the case to the jury.—Allison v. State, 1 Ala. App. 207, 55 South. 453; Speigner v. State, 11 Ala. App. 296, 66 South. 896; Gustin v. State, 10 Ala. App. 171, 65 South. 302.

It is insisted that the ordinance is void because it does not contain an ordaining clause in the form prescribed by section 1252 of the Code. If this section of the Code is not merely directory in so far as it prescribes a form for the ordaining clause, as it appears to us to be (St. Louis v. Foster, 52 Mo. 513; People v. Murray, 57 Mich. 396, 24 N. W. 118, 2 Dillon on Municipal Corporations [5th Ed.] 575; 28 Cyc. 352; 36 Cyc. 1157), under .the provisions of section 1259 of the Code, the book of ordinances, purporting to have been published by authority of the city, and admitted to be such, was prima facie proof of the validity of the ordinance, and the burden was on the defendant to rebut the presumption afforded by the statute, and no such proof was offered. There was therefore no error in refusing the affirmative charge.

On a charge of keeping prohibited liquors contrary to law or ordinance of a city, evidence of a sale previous to the commencement of the prosecution, in connection with other evidence tending to show the keeping in unusual quantities, is admissible as testimony to show the purpose, for which the liquors are kept, and to rebut and overcome any presumption that they were kept for private use. — -Authorities supra.

There is no error in the record, and the judgment of the county court is affirmed.

Affirmed.