The indictment in this case pursues the given form, and is sufficient.- — Code of 1876, page 998, form 59. It is framed under section 4205 of the Code, and charges that the defendant sold or gave spirituous, vinous, or malt liquors, to a person of known intemperate habits. Three esential facts must have been established to the satisfaction of the jury, beyond a reasonable doubt, to authorize a conviction: first, that there was a sale or gift of spirituous, vinous, or malt liquor; second, that the sale Or gift was to a person of intemperate habits; third, that at the time the seller or giver knew the person to whom he furnished the liquor was of intemperate habits. The first and second of these essential facts must be proved as any other material facts in a criminal prosecution are proved. They can not be proved by general character, general reputation, or general notoriety in the community in which the offense is alleged to have been committed; and this species of testimony is not admissible to prove either of these constituents of the offense. Only evidential facts and circumstances can be given in evidence, in support of these two propositions. The other element of the offense falls under a different rule. Knowledge is the fact to be proved- — the defendant’s knowledge of the intemperate habits 'of the person to whom he made the sale. On this question, general reputation, general character, may be introduced in evidence. — Stallings v. The State, 33 Ala. 425; Price v. Mazange, 31 Ala. 701; Elam v. The State, 25 Ala. 53. Such testimony, however, is not conclusive. It is received on the theory, that what is generally known in the community — so known, as to have established a general character or reputation — furnishes evidence to be weighed by the jury, in determining whether the accused had the requisite knowledge. If, upon all the evidence, including this proof of general character, the jury are convinced, beyond a reasonable doubt, that the defendant did know the intern-, perate habits of the person to whom he was selling or giving the liquor, then this third element of the offense is proved according to the requirements of the law. If the proof falls short of this measure of conviction, there should be an ac-? *152quittal. — Smith v. The State, 55 Ala. 1; Atkins v. The State, 60 Ala. 45.
In Coleman v. The State, 59 Ala. 52, we stated the doctrine of reasonable doubts, and the measure of proof required in criminal cases. That rule applies in the ascertainment of every material fact, necessary to make up the defendant’s guilt in this case, including the three essential elements commented on above. Each must be affirmatively shown to a moral certainty, so as to convince the jury of the truth of each, beyond a reasonable doubt.
What is meant by the expression in the statute, “ intemperate habits ? ” Habit is defined to be, “Fixed or established custom; ordinary course of conduct.” — Webst. Die. It need not be the uniform or unvarying rule, but, to be a habit, it must be the ordinary course of conduct — the general rule or custom. It may have exceptions. Exceptions do not destroy a rule. But, unless, when occasion offers, there is a disposition, or probable inclination, to drink to excess, intemperate habits can not be predicated. If sobriety is the rule, and occasional intoxication the exception, then the case is not brought within the statute. On the other,hand, if the rule or habit is to drink to intoxication when occasion offers, and sobriety or abstinence is the exception, then the charge of intemperate habits is established. Now, to make out this charge, it is not necessary that this custom shall be an every-day rule. There are persons whose custom is to remain sober while at home, and who, when in company, or visiting the town or village, generally drink to excess, although occasionally they abstain, and remain sober. In such case, drunkenness is shown to be the rule, or ordinary course of conduct; and to sell or give to such person, knowing him to be such, spirituous, vinous, or malt liquors, is a violation of the statute. — Smith v. The State, supra.
Intemperate habits is a collective fact, to which a witness may testify. We can perceive no reason why the person to whom the sale is- alleged to have been made, should be made an exception to the rule. All persons, having sufficient knowledge, should be allowed to testify that the alleged purchaser of the liquor was, or was not, a person of intemperate habits. So, all persons knowing his general character in the premises, should be heard to testify whether his intemperate habits were, or were not, generally known in the community in which the sale or gift was made. All this is legal evidence, to be weighed by the jury. If, under these rules, the defendant is found guilty, the injury done to society, and especially to the family of the inebriate, if he has one, calls for firm, if not exemplary, administration of the law,
*153In defining what constitutes intemperate habits, and in refusing to give some charges asked, defining the measure of proof necessary to authorize conviction, the Circuit Court erred. There may be other rulings subject to criticism, but we consider it unnecessary to specify them. What we have said will furnish a sufficient guide on another trial.
Reversed and remanded. Let the defendant remain in custody, until discharged by due course of law.