Report of cases argued and determined in the Supreme court of Alabama (Volume 55) online

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EBPOETS



CASES AEGUED AND^DETEKMINED



IN THE



SUPKEME COURT OF ALABAMA,



DECEMBER TERM, 1876.



BY

THOMAS G. JONES,

STATE BEPOBTEB.



VOL. LV.



MONTGOMERY, ALA. :

PUBLISHED BY JOEL WHITE.

1878.



45




ENTEBED, according to Act of Congress, in the yeaf 1878, by

JOEL WHITE,
in the office of the Librarian of Congress, at Washington, D. C.



PIUNTED BV BAESETT A BBOWN, MONTGOMERY, ALA.



OFFICERS OF THE COUBT

DURING THE TIME OF THESE DECISIONS,



EGBERT C. BRICKELL, CHIEF JUSTICE, HuntsviMe, Ala.
AMOS R. MANNING, ASSOCIATE JUSTICE, Mobile, Ala.
GEORGE W. STONE, ASSOCIATE JUSTICE, Montgomery, Ala.

JOHN W. A. SANFORD, ATTOKNEY GENERAL, Montgomery, Ala.
THOMAS J. RUTLEDGE, CLEEK, Montgomery, Ala.
JUNIUS M. RIGGS, MAESHAL, Montgomery, Ala.



TABLE OE CASES.



Adams v. The State 143

Adler v. The State 16

Alexander v. Caldwell 517

Allen, Ex parte 258

Anonymous 428

^ Anthony's Adm'r v. Anthony 322

Ashurst ats. Micou 607

Augustini & Wife ats. St. Joseph's
Academy 493

Bank (First National) ats. Gio-
vanni 305

Baxter ats. McConnaughy 379

Beggs v. The State 108

Bender & Wife v. Meyer & Co 576

Bibb ats. Lehman, Durr & Co 411

Bingham v. Philpot 435

Bouner v. The State 242

Booker v. Jones' Adm'r 266

Boulo v. Kailroad Co. (N. O., M.

&C.) 480

Boswell & Woolley v. Carlisle, Jones

&Co 554

Boykin ats. Fabel 383

Brown v. The State 123

Buchanan v. The State 154

Buell & Wife ats. Janney 408

Burch v. The State . . 136

Cain v. The State 170

Caldwell ats. Alexander 517

v. The State 133

Campbell v. Hatchett 548

The State 80, 89

Carlin v. Jones 624

Carlisle, Jones & Co. ats. Boswell

& Woolley 554

Carter v. The State 181

Chambers v. McPhaul 367

Chambers County v. Lee County. .534

Chapman v. Lee's Adm'r 616

Childs v. The State 25, 28

Cobb & Lewis ats. Shelby Iron

Company 636

Cockrell v. Coleman's Adm'r 583

Coleman ats. Mareugo County .... 605

v. Smith 369

The State 173

Coleman's Adm'r ats. Cockrell 583

Collier v. The State 125

Colly v. The State 85

Cooley v. The State ]62



Crawford v. Creswell 497

ats. Kirksey 282

Creswell ats. Crawford 497

Daniel v. Stewart 278

Dillard v. Webb 468

MK parte Allen 258

Mason 262-

McKivett 236

Weaver 250

Fabel v. Boykin 383

First National Bank ats. Giovanni.. 305

Floyd v. The State 61

Foscue v. Lyon 440

Gillman v. The State 248

Giovanni v. First National Bank. .305

Gooden v. The State 178

Grant v. The State 201

Gray v. The State 86

Gregg v. The State 116

Grey's Executor v. Mobile Trade
Company 387

Hartley v. The State 31

Haines ats. Tarver 503

Harrison v. Simons 510

The State 239

Hatchett ats. Campbell , 548

Hatchett & Trimble ats. Hughes. . .539 -
Hatchett & Trimble ats. Hughes. ..631

Hinds v. The State 145

Hughes v. Hatchett & Trimble . 539, 631

Hunt v. The State 138

Hunter v. The State 76

Hurt v. The State 214

Jacobson v. The State 151

James v. James 525

Janney v. Buell & Wife 408

Jones ats. Carlin 624

Jones' Adm'rx ats. Booker 266

Kirksey ats. Crawford 282

Langham v. The State 114

Lawson v. The State 118

Lee v. Lee 590

The State 259

Lee's Adm'r ats. Chapman 616



VI



TABLE OF CASES.



Lee County ats. Chambers Coun-
ty 534

Lehman, Durr & Co. v. Bibb 411

Lyon ais. Foscue .440

Marengo County v. Coleman. 605

Marx ats. Miller 322

""Mason, JExparte 262

Matthews v. The State 65, 187

Mattison v. The State 224

May v. The State 39, 164

McConnaughy v. Baxter 379

McGuire v. Van Pelt 344

Mclntyre v. The State 167

McPhaul als. Chambers 367

McQueen v. McQueen 433

" ats. Smith 368

Meinaka v. The State 47

Meyer & Co. ats. Bender & Wife. . .576

Micou v. Ashurst 607

Miller v. Marx 322

Mitchell v. The State 160

Mixon v. The State 129

Mobile Trade Company ats. Grey's

Executor 387

Morningstar v. The State 148

Murphy v. The State 252

Nixon v. The State 120

H Pause v. The State 16

Perry v. Railroad Company (N. 0.,

M. &C.) 413

Philpot v. Bingham 435

Pond v. The State 196

Porter v. The State 95

Preston v. Wright 570

Provov. The State 222

. Railroad Company (N. O. , M. &

' C.) ats. Boulo 480

fcvilroad Company (N. O., M. &

"'C.) ats. Perry 413

lisler v. The State 64

Ross v. The State 177

Rowland v. The State 210

Sanders v. The State 42, 183

Shelby Iron Company v. Cobb &

Lewis 636

Short ais. Weber 3J1

Bimon v. The State 16

Simons o/.v. Harrison 510

Smith ats. Coleman 368

_ Smith's Adm'r 322

v. McQueen 368

The State .1, 59

.State ats. Adams 143

Adler 16

Beggs 108

Bonner '212

Brown I2'.i

Buchanan 154

Burch.. ..136



State ats. Cain 170

Caldwell 133

Campbell 80, 89

Carter 181

Childs 25, 28

Coleman 173

Collier 125

Colly 85

Cooley 162

Floyd 61

Gillman 248

Gooden 178

Grant 201

Gray 86

Gregg 116

Hadley 31

Harrison 239

Hinds 145

Hunt 138

Hunter 76

Hurt 214

Jacobson 151

Langham 114

Lawson 118

Lee 259

Matthews 65, 187

Mattison 224

May 39,164

Mclntyre 167

Meinaka 47

Mitchell ..160

Mixon 129

Morningstar 148

Murphy 252

Nixon 120

Pause 1C -

Pond 196

Porter 95

Provo 222

Raisler 61

Ross 177

Rowland 210

Sanders 42, 183

Simon 16 '

Smith 1, 59

Stollenwerk 142

Stroud 77

Thomas 260

Yasser 254 -

Watson 150, 15d

Weed 13

Wetmore 198

Williams 71, 166

Wooster 217

St. Joseph's Academy v. Augustini
& Wife 493

Stewart ats. Daniel 278

Trenier 458

Stollenwerk v. The State 142

Stroud v. The State 77

Tarver v. Haines 503

Thomas v. The State 260

Trenier v. Stewart ... , . . 458



TABLE OF CASES.



Van Pelt (its. McGuire 345

"Yasser v. The State 254

Watson v. The State 150, 158

Webb ais. Dillard 468

Weber v. Short.., ...311



Weed v. The State 13

Wetmore v. The State 198

Williams v. The State 71, 166

Wooster v. The State 217

Wright v. Preston 570




OA.SES

IN THE

SUPREME COURT OF ALABAMA.



DECEMBEE TEEM, 1876.

Smith v. The State.

Indictment against Retailer of Spirituous Liquors.

1. Constitutionality of ad of March 18, 1875, " to render more explicit and to
provide for the belter enforcement of the provisions of lava in reference to the sale or
yiving away of spirituous, vinous, or matt liquors. " The act approved March 18,
1875, entitled " An act to render more explicit and to provide for the better
enforcement of the provisions of law in reference to the sale or giving away of
spirituous, vinous, or malt liquors in this State " (Sess. Acts 1874-5, p. 280),
is not yiolative of the constitutional provision, contained in the second section
of the fourth article, which declares that "each law shall contain but one sub-
ject, which shall be clearly expressed in its title."

2. Challenge of juror for cause ; when made, or waived. In capital felonies,
a juror who has been accepted and sworn, whether he be one of the regular
pannel or a talesman, cannot, without the consent of the prisoner, be after-
wards set aside, nor challenged, for cause existing when he was sworn,
although such cause was not discovered until after he had been accepted and
sworn ; but, in cases of misdemeanors, and felonies not capital, a regular juror
may be challenged for cause at any time before he is by some positive act ac-
cepted ; mere silence as to him while challenging other regular jurors, when
they are called together to the box by the order of the court, is not a waiver of
the right to challenge him for cause subsequently discovered ; and as to tales-
men, the right of challenge for cause, discovered after acceptance, though pre-
viously existing, may be exercised at any time before the juror is sworn, or at
least before the ceremony of administering the oath to him is begun. (Over-
ruling Stalls v. The Stale, 28 Ala. 25.)

3. Same; what is good cause. In any criminal case, whether a felony or
misdemeanor, it is a good ground of challenge for cause by the State, that a
person will not as a juror convict on circumstantial evidence.

4. Same, On the trial of a person for selling liquor to a man of "known
intemperate habits," a juror who served on the trial of another person, charged
with selling to the same man, may bo challenged for cause on that ground, or
set aside by the court, although the statute (Eev. Code, 4180) does not ex-
pressly declare him subject to challenge for cause. (Overruling Boggs v. The

VOL. LV. (2) .



2 SUPREME COURT L Dec - Term >

[Smith v. The State.]

State, 45 Ala. 30, and Lyman v. The Stale, 45 Ala. 72, in which the specified
grounds of challenge were held to be exclusive of all others.)

5.. Organization of petit jury; .supplying vacancies. On the trial of misde-
meanors, and felonies not capital, vacancies in the petit jury, caused by the
challenge and discharge of regular jurors, may be supplied, at the discretion
of the court, either by calling other regular jurors, or by summoning talesmen;
and the exercise of this discretion is not revisable on error.

6. To what witness may testify. A witness, well acquainted with the habits
of the person to whom liquor was sold by the defendant, may testify that he is
ft man " of intemperate habits," but not that he is " of koton intemperate liabits."
(Overruling Stanlty & Elliot v. The State, 26 Ala. 2(i)

7. What constitutes " intemperate habits ;" question of fact for jury. The
frequent use of intoxicating liquors to an excess, producing either drunken-
ness or any change, mental or physical, from the natural condition of sobriety,
constitutes "intemperate habits" within the meaning of the statute (liev.
Code, 3618); and whether a person is "of intemperate habits," is a question
of fact for the determination of the jury.

8. Selling liquor to person of ''known intemperate habits;" constituents of
offense; guilty knoivltdge. To authorize a conviction for selling liquor to a
person "of known intemperate habits," the jury must be satisfied from the
evidence that the deleudaut had knowledge of such intemperate habits ; and
they may infer guilty knowledge on his part, from the fact that he had good
reason to believe that such were the habits of that person ; but this is an in-
ference of fact to be drawn by the jury, and not a presumption of law to be
drawn by the court.

9. Same; charge as to guilty knowledge. The notoriety of the intemperate
habits of the person to whom the liquor was sold, in the neighborhood in
which the defendant resided, is a fact from which the jury may infer knowl-
edge by him of such habits ; but a charge which, in effect, instructs them that
they are bound to infer knowledge by him from that fact, is an invasion of
their province, and therefore erroneous.

FROM the Circuit Court of Choctaw.

Tried before the Hon. LUTHER E. SMITH.

The indictment in this case, which was found in May,
1876, charged that the defendant, Eichard B. Smith, " did
sell, or give away, to John H. Wilson, a man of known in-
temperate habits, spirituous, vinous, or malt liquors, without
the requisition of a physician for medical purposes." The
defendant demurred to the indictment 1st, because it was
founded on the act approved March 18, 1875, entitled " An
act to render more explicit and to provide for the better en-
forcement of the provisions of law in reference to the sale or
giving away of spirituous, vinous, or malt liquors in this
State," "and said title does not express said law;" 2d, "be-
cause said act contains two distinct subjects, the first relating
to criminal matters, and the second to civil matters only ;"
3d, " because said act fails to set out or contain the law or
laws so explained, revised, or amended;" 4th, "because said
act is a revision, or amendment, of the laws heretofore exist-
ing on the subject of selling or giving away spirituous liquors,
and fails to contain the law or laws so revised, amended, or
explained." The court overruled the demurrer, and the de-
fendant then pleaded not guilty.

VOL. LV.



!S76.] OF ALABAMA. 3

[Smith v. The State.]

" On the trial," as the bill of exceptions states, " the fol-
lowing proceedings were had : Jury number one were or-
dered to take their places in the jury-box, and, the State
having challenged two, and the defendant four of said jurors,
and four jurors having been called from jury number two,
they took their seats in the box. The solicitor then asked
the court to allow him to ask a juror a question, and, per-
mission being given, asked one of said jurors, if he would
convict upon circumstantial evidence; to which said juror
answered, that he would not. The solicitor then asked the
court to excuse said juror for cause, and as a person unfit to
serve on the jury, and the court excused him ; to which ac-
tion and ruling the defendant objected and excepted. The
court then asked the remaining nine jurors, ex mero motu, if
any of them had been members of the jury which, during
the present term of the court, had tried another defendant
charged with selling liquor to John H. Wilson, a man of
known intemperate habits, to whom the defendant in this
case was charged with selling liquor ; and four of them hav-
ing replied that they had served on the jury in said other
case, the court thereupon, ex mero motu, excused them from
serving on the jury in this case ; to which action of the court
the defendant then and there objected and excepted. There
were then left, of the regular jurors, no others except those
accepted, or challenged and excused, as above set forth, who
had not been members of the jury in said other case ; and
the court thereupon instructed the sheriff to summon by-
standers to complete the jury. The defendant insisted that
the jury should be completed from the regular jurors ; but
the court refused to so order, and the defendant then and
there objected and excepted to said action and refusal. The
sheriff then summoned four bystanders to complete the jury,
two of whom were excused by the defendant, and the court
then ordered the sheriff to summon other bystanders to com-
plete the jury ; to which the defendant excepted. After the
jury was thus completed, and before the talosrnen were sworn,
the solicitor asked the court to alloAV him to ask one of the
jurors, whether he would convict upon circumstantial evi-
dence ; to which the defendant objected, but the court over-
ruled his objection, and allowed the question to be asked ;
and the juror having replied, that he would not, the solicitor
asked that said juror be excused ; to which the defendant
objected, and excepted to the action and ruling of the court
allowing it. The court then ordered the sheriff to fill the
place of said juror by summoning one of the bystanders; to
which the defendant objected, and reserved an exception."

Several witnesses were introduced on the part of the pros-



4: SUPREME COURT [Dec. Tenn,

[Smith v. The State.]

ecution, and several by the defendant, who testified as to the
intemperate habits of John H. Wilson, the person to whom
the liquor was sold, and who was himself examined as a wit-
ness on the part of the State. Among these witnesses, A.
Abney, a witness for the State and a merchant in the town
in which the defendant's place of business was situated, testi-
fied, that said Wilson had for several years done most of his
business with the house of Abney & Co.; that he had fre-
quently seen Wilson drunk on the streets in said town ; that
he was a man of "known intemperate habits;" "that he
knew some other persons in and around Butler," the town in
which the defendant's shop was situated, " who knew the
fact of his intemperate habits, but he could not say that the
defendant knew it ; and that he had never heard said
Wilson's character for intemperance discussed." " The de-
fendant thereupon moved the court to exclude from the jury
the statement of said witness, ' that said Wilson was a man
of known intemperate habits ;' and he reserved an exception
to the overruling of his motion by the court." Several other
exceptions were reserved by the defendant to similar rulings
of the court on questions of evidence, which require no par-
ticular notice.

The court charged the jury, in writing, as follows : " Be-
fore the State can ask a verdict of guilty in this case, the
solicitor must show, by satisfactory proof, that the de-
fendant sold or give away spirituous liquors, to a person of
known intemperate habits, within twelve months before the
finding of this instrument, and that this was done in Choctaw
county. When the solicitor has shown this by evidence, he
has a right to ask a verdict of guilty, unless the defendant
shows some good reason why he should be acquitted. (There
are some facts which are admitted : that the witness Wilson
bought spirituous liquors from the defendant, in this county,
within twelve months before the finding of the indictment ;
and these facts are not disputed.) The State insists, that
said Wilson was a man of known intemperate habits, and
that the evidence shows the defendant must have known his
character in the community in which he has lived for the
past four years ; and the defendant denies that said Wilson
was a man of known intemperate habits. Wliat are the
facts ? What is necessary to constitute a man of known in-
temperate habits? In Webster's Dictionary, intemperate
habits are thus defined : ' 1. In a general sense : want of
moderation or due restraint ; excess in any land of action or
indulgence. 2. Habitual indulgence in drinking of spirituous
liquors, with or without intoxication.' Worcester, another
standard authority, says : ' Intemperance is the excessive,

VOL. LY.



1876.] OF ALABAMA. 5

* [Smith v. The State.]

immoderate indulgence in intoxicating liquors.' A habit is a
tendency, or aptitude, for the performance of certain actions,
acquired by custom, or a frequent repetition of the same act.
Was said Wilson a man of intemperate habits ? Does the
evidence show that he frequently indulged immoderately,
and to an excess, in drinking intoxicating liquors ? If you
believe that said Wilson was a man of intemperate habits,
and that he bore that character in the community where he
lived, and where the defendant lived, was that character
known to the defendant, and does the evidence show that he
must have known, or had good reason to believe, that said
Wilson was a man of known intemperate habits, at the time
he sold the liquor to said Wilson? If so, the defendant must
be convicted. It is for the jury to say, from all the evidence,
whether the defendant knew the character of said Wilson ;
and they may, in connection with the other facts in the case,
look to the fact that others in the same community knew his
character. The defendant insists, however, that the evidence
is not sufficient to convince the jury, beyond a reasonable
doubt, that he is guilty as charged in the indictment. What
is a reasonable doubt ? A doubt, which requires an ac-
quittal, must be actual and substantial ; not mere possibility,
or speculation. . It is that state of the case, which, after the
entire consideration and comparison, leaves the minds of the
jury in such condition that they cannot say they feel an
abiding conviction to a moral certainty of the charge. The
defendant insists, that he cannot be rightfully convicted,
because he did not intend to violate the law. Ignorance of
the law is no excuse ; and if the defendant intended to sell
the liquor, and knew, or had good reason to believe, that said
Wilson was a man of known intemperate habits at that time,
then he would be guilty, for the law presumes that every
sane man intends the natural consequences of his own acts."
The court further charged the jury, at the request of the
solicitor, as follows : " While it is not a legal presumption
that is, a presumption of law it is a presumption of fact,
that what is notorious in the neighborhood, is known to the
defendant, if he lives in the neighborhood." To this charge,
and to those parts of the affirmative charge, above copied,
" which define habit, and the definition there given of a per-
son of known intemperate habits," and to the words which
are italicized, the defendant excepted ; and he then requested
several charges in writing, of which the court refused to give
the following : 1. " The single habit of getting drunk, even
separately, does not constitute intemperate habits." 2. "A
person who gets drunk at intervals of several months, or not
more than once or twice a year, is- not a person of known in-



6 SUPBEME COURT P**- Term,

[Smith v. The State.] .

temperate habits." 3. " The mere fact that a man gets
drunk occasionally, in the neighborhood in which the defend-
ant resides, is only a circumstance going to show his knowl-
edge of the fact, but is not conclusive." 4. " A person who
gets drunk occasionally, is not a person of known intemperate
habits." 5. "If the jury believe, from the evidence, that
Wilson's intemperate habits were notorious in the com-
munity in which he lives, yet, if such notoriety is not traced
directly to the defendant, he is not guilty as charged."

The overruling of the demurrer to the indictment, and the
several rulings of the court to which exceptions were re-
served on the trial, as above stated, are the matters now
presented for revision.

S. H. SPEOTT, with GLOVEE & TAYLOR, for defendant.
JNO. W. A. SANFOED, Attorney-General, for the State.

BBICKELL, C. J. 1. The only question presented by
the demurrer to the indictment is the constitutionality of the
act, approved March 18, 1875 (Pamph. Acts 1874-5, p. 280),
entitled " An act to render more explicit and to provide for
the better enforcement of the provisions of law, in reference
to the sale or giving away of spirituous, vinous, or malt
liquors in this State." This question was fully considered in
Adler v. State, at the present term, and the constitutionality
of the act affirmed.

2. Indictments for misdemeanors, or for felonies which
may not be punished capitally, are triable by the regular
jurors summoned' for the week, or for the term, if the term
does not exceed one week. These jurors are organized by
the court, on the day to which they are summoned, into
separate pannels, and numbered jury one and two. They are
sworn generally ; not for the trial of a particular issue, but
well and truly to try all issues, and execute all writs of in-
quiry, which may be submitted to them, and true verdicts to
render according to the evidence. When a cause is called for
trial, it is in the discretion of the court to cause either pannel
to take the box ; and the pannel called, on taking their seats,
are subject to challenges. If the indictment is for a
felony which may be punished capitally, special jurors are
summoned, including the regular juries. From the special
jurors summoned a jury is drawn and selected. As the name
of each person so summoned is drawn, though he may be of
the regular juries, he is examined by the court touching his
qualifications, and to ascertain if he is subject to challenge
for cause. If on such examination he is found of the requisite

Voj*. i,y.



OF ALABAMA. 7

[Smith v. The State.]

qualifications, and not subject to challenge for cause, he is
put first on the State, and then on the defendant ; and if ac-
cepted by each, he is sworn for the trial of the issue in the
particular case. After having been accepted and sworn, he
cannot, without the consent of the prisoner, be set aside, or
challenged, for any cause existing at the time he was sworn,
although such cause was not discovered until after he had
been accepted and sworn. State v. Williams, 3 Stew. 454 ;
State v. Morea, 2 Ala. 275 ; Stalls v. State, 28 Ala. 25 ; Mc-
Fadden v. Commonwealth, 23 Penn. 12.

This rule cannot be applied to indictments for misde-
meanors, or for felonies not capital, except as to talesmen ;
because the regular jurors of the week, or term, are not
sworn for the trial of the particular case, but generally for
the trial of all issues which may be submitted to them ; and
the oath is administered before the State or the defendant
has the opportunity of interposing a challenge. As to these
jurors, the right of challenge for cause exists, until, by some
positive act, the juror is selected by the State and the de-
fendant. The mere calling of the juror to the bar, by the
order of the court, and the challenge of other jurors called