The defendant was indicted under section 4443 of the Code of 1876, which enacts that “any person . . . who, being a merchant or shopkeeper (druggists excepted), keeps open store on [Sunday], must, for the first offence, be fined not less than ten, nor more than twenty dollars,” &c. The indictment charges that the defendant, “ being a retailer of spirituous liquors, or merchant, or shopkeeper, and not a druggist, did keep open store on the Sabbath.” The indictment does not pursue the statute literally, but its averments bring it substantially within the statute.
What is meant by the terms, “keeps open store?” We do not think it can be the simple fact, accidental or otherwise, that the door of the store or shop is open, or kept open. A store and the proprietor’s dwelling are sometimes in the same house and on the same floor; and the opening of one results in the opening of the other. The legislature' did not intend to prohibit or punish an act like this. What they intended was to prohibit the keeping of open store, or open doors, for purposes of traffic. It was this which was considered offensive to morals. If the defendant kept his store, or the door of it, whether front or rear, open on the Sabbath, and by means thereof sold merchandise, or other articles or commodities kept there for sale, then he violated the statute; and it makes no difference-whether he himself dealt out the commodity, or permitted his customers to wait on themselves. The inquiry should be sale vel non. If the parties intended a sale, whether payment was presently made, or expected to be made afterwards, the statute was violated. And the store being open, one sale would constitute the offence. — Smith v. The State, 50 Ala. 159.
The purpose for which the defendant keeps open store on Sunday, is necessarily a question of fact and intent, to be found by the jury under proper instructions. Men who violate the law, rarely give publicity to their purpose. Artifice is frequently resorted to by law-breakers, with a view,of •concealing their real design. Circumstances should be scanned. *68witli earnest vigilance, that the real transaction be made to appear. And if, in survey of all the facts, the jury are convinced to a moral certainty that there was in fact a sale, and that it was so intended at the time, then they should not hesitate to pronounce the defendant guilty. Sabbath traffic, particularly in intoxicating drinks, is offensive to the moral sense of a religious community, and the statute intended for its repression should be faithfully enforced. But merely keeping the door of a store open on the Sabbath is not a violation of the law, unless then he traffic on that day.
The particular offence we are considering, is “ keeping open store” on the Sabbath. A sale, or sales, made on that day, are but evidence to consummate the offence. They are ingredients, but not the statutory misdemeanor the legislature intended to repress. We do not think the doctrine of election applies to these mere evidences of the intent of one charged with keeping open store on the Sabbath.
If defendant was a druggist, this was defensive evidence for him to offer. It was not necessary for the prosecution to disprove it. — Farrall v. The State, 32 Ala. 557.
Several of the rulings of the Circuit Court are not in harmony with our views above expressed.
Reversed and remanded. Let the defendant remain in custody until discharged by due course of law.