Bain v. State

BBICKELL, C. J.

1. The judgment in this cause must be reversed, because the charge given by the court of its own motion, authorized a conviction, though the jury may not have believed from the evidence, that the offense charged was committed in the county of Marshall, within twelve months before the commencement of the prosecution. It has often been decided in this court that a charge is erroneous, which authorizes a conviction of a criminal offense, without proof that the offense was committed in the county in which the indictment was found. — Solomon v. The State, 27 Ala. 27; Brown v. The State, ib. 47; Huffman v. The State, 28 Ala. 48; Green v. The State, 41 Ala. 419. So it has also been decided, that a charge is erroneous based upon a hypothetical state of facts, not including proof of venue, and the commission of the offense, within the period prescribed as a bar to its prosecution. — Farrall v. The State, 32 Ala. 557; Henry v. The State, 36 Ala. 268.

2. A known exception to the general rule excluding hearsay evidence, is, in matters of pedigree, which includes not merely relationship or its degree, but the time of birth, death or marriage. — 1 Whart. Ev. § 208. This evidence is not regarded as secondary — it is classed as primary, and though. *78 more satisfactory evidence of tbe fact could be produced, the ■evidence must go to the jury affected, so far as under the particular circumstances of the case they may regard its credibility as affected, by the fact that the more satisfactory evidence is not produced. — Clements v. Hunt, 1 Jones’ Law, 400; Patton v. Rambo, 20 Ala. 485. The Circuit Court did not err in permitting the witness Foreman to testify as to his age, nor in refusing the first and second charges requested by the appellant.

3. There was no evidence so far as is shown by the bill of exceptions, that the appellant in good faith believed Foreman was of age when the liquor was sold. The third instruction requested, was therefore properly refused. A charge based on a hypothesis, there is no evidence tending to support, is properly refused.

4. The statute under which the present indictment was found, reads: “ Any person, whether with or without a license, who shall sell or give away spirituous, vinous, or malt liquors, in any quantity whatever, to minors or persons of^known intemperate habits, except upon the requisition of a physician for medicinal purposes, is guilty of a misdemeanor,” &c. — Code of 1876, § 4205. For a long time the statute book has borne prohibitory enactments against the sale of liquors to minors, and these enactments have been in various forms and terms, all having the common purpose of protecting the’young and inexperienced against the evils of indulgence in the use of intoxicating beverages. The statute immediately preceding the present, authorized (or rather did not fix upon it the quality of a criminal offense), a sale, or gift, with the consent of the parent, guardian, master, or other person having legal charge of the minor. — R. C. § 3619. Thus leaving it to the discretion of the person having by nature, or by law, the care of the minor, whether sales or gifts of liquor should be made to him. Under the present statute, there is but one event in which a gift or sale can be made, and that is upon the requisition of a physician for medicinal purposes. The authority of a parent, guardian, or master, may extend to and legalize other transactions with a minor, but it can not relieve of criminality, a sale or gift to him, of spirituous, vinous, or malt liquors, unless it is accompanied with the requisition of a physician for medicinal purposes. — Simon v. State, 54 Ala. 24. Reading the present in connection with the former statutes, there is indicated a manifest legislative intent, to render all sales or gifts of spirituous, vinous or malt liquors to minors unlawful, unless there *79 is the requisition of a physician for medicinal purposes — not the mere advice of the physician that liquor shall be used, communicated to the vendor through the minor to whom it is given or sold — but an application, or a request, communicated by the physician directly to the seller, either orally or in writing. The statute must be construed in view of the mischiefs against which it is intended to provide ; and while cases not within its letter, though within the mischiefs, may not be drawn under its operation, there must not be a construction, which will withdraw cases within the legitimate meaning of the language and within the mischief. The language is broad, embracing every gift or sale to a minor, with but one exception. If he is the active agent as donee or purchaser, the sale or gift is to him in fact, and it is within the words of the statute. The principal may employ him as the instrument through which he will derive benefit from the gift or sale. But such sale or gift is to the minor, and he is subjected to the temptation and danger against which the statute intends to guard him, though he is not intended to derive benefit from it. The statute would soon become a dead letter, if it was so construed that sales to the minor as agent or servant, were excluded from its operation. The legislature were idly employed when revising former statutes, and excluding sales with the consent of parent, guardian, or master, if a sale or gift to the minor as their agent is not now excluded. The agency may be created with the same facility with which the consent could be expressed. An honest error as to the existence of a fact may be an excuse for an act which would otherwise be criminal. The rule has been applied to this statute, and we have held the seller not guilty, if in the exercise of due care he is really deceived into the belief that the person to whom he sells is of full age, though the fact may be otherwise — Pause v. State, 55 Ala. 16. The same rule must be applied as to the fact of agency, if a sale to the minor as agent is excepted from the operation of the statute. The consequences of that construction can be easily foreseen — the statute would fall far short of accomplishing the legislative intention. Ve think the statute visits with punishment every sale to a minor unless it falls within the exception expressed. It must operate alike as to minors, and persons of intemperate habits, and it would scarcely be insisted that sales to such persons for themselves only, and not sales in which they may act as agents or servants, are within the statute.

5. “ The law presumes that every person intends to do *80 that which he does.” Hence, whenever one does an act in itself legally wrong, the law presumes the intent to do that act; and the act of itself is evidence of the illegal intent. Stein v. The State, 37 Ala. 133. If the appellant sold or gave spirituous, or vinous, or malt liquor, to the person named in the indictment, and he was at the time a minor, without the requisition of a physician for medicinal purposes, the sale or gift was in violation of the statute, and is of itself evidence of the illegal intent. No other intent is necessary than to make the sale, or gift, aüd that intention existing, of which the gift or sale is evidence, there can be no inquiry as to whether he had, as it is expressed in the instructions requested, a specific intent to violate the law.

Eor the error we have noticed, the judgment is reversed and the cause remanded. The appellant must remain in custody until discharged by due course of law.