Roberson v. State

STONE, C. J.

The defendant was prosecuted “for selling, giving away, or otherwise disposing of spirituous, vinous or. malt liquors, without a license and contrary to law.” The proceeding is under a local prohibition iaw. Act approved February 28, 1881; Sess. Acts, 148.

We can not say there was no testimony tending to show that defendant sold a bottle of spirituous liquor in the town of Columbiana, Shelby county, within twelve months before the commencement of the present prosecution. Its sufficiency was a question for the jury. The County Court did not err in refusing to give the first charge asked by defendant.

There was no error in refusing any of the charges 2, 3, 4 and 5, as the same were asked by defendant. Charge No. 2 is not only argumentative, but it exacts too high a grade of proof as a condition of conviction. .It sought to have the jury instructed that they must find the defendant not guilty, unless the evidence convinced them “beyond a reasonable doubt and a moral certainty” of his guilt. To justify conviction of a public offense, whether it be crime or misdemeanor, the testimony must convince beyond a reasonable doubt, but there is no recognized rule that it must be beyond a moral certainty. Possibly, there is an error in transcribing, but we must deal with the language as we find it. A correction of this clause, however, would not put the court in error for refusing to give it. The objection that it is an argument would still remain.—Shepperd v. State, 94 Ala. 102; Mitchell v. State, Ib. 68; Hornsby v. State, Ib. 56; Chatham v. State, 92 Ala. 47; Brassell v. State, 91 Ala. 45; Brantley v. State, Ib. 47; Kirby v. State, 89 Ala. 63; Pellum v. State, Ib. 28.

Charge No. 3 states as one constituent of its hypothesis, that though the bottle labelled “Plantation Ritters” may have contained whiskey, yet, if “defendant had no knowledge of its being whiskey, and bought it for bitters,” &c. The defendant was examined as a witness, and he testified that lie Jiad taken one drink out of the bottle, not long before the alleged sale of it. He did not testify to a ivant of knowledge that it was whiskey, nor was there any testimony tending to prove such want of knowledge. The court does not err in refusing a charge, if any part of its hypothesis of facts has no testimony in its support.—Pollak v. Davidson, 87 Ala. 551; Kidd v. State, 83 Ala. 58.

Charge No. 4 claims defendant’s acquittal, if he “did not see Baldwin get the bottle” out of a box in defendant’s shop, although Baldwin, when he went in and obtained the bottle, “threw a half-dollar in the chair.” Not seeing Baldwin get the bottle, was by no means conclusive that he did not sell — intentionally sell to him — the bottle with its contents. This charge was rightly refused.

Charge ,J3 claims an acquittal on the postulates, that defendant neither told Baldwin to get the bottle, nor saw him get it. Neither of these was absolutely essential to the making of a valid contract of sale. Conduct is frequently as expressive of the intention of parties as spoken words could be. It was for the jury to determine, under all the evidence, whether the intention of the parties was a parting with the ownership by Boberson, and a purchase and payment by Baldwin. If this was the intention, though only evidenced by their conduct and not in words, and if the evidence satisfied the jury beyond a reasonable doubt that such was the intended transaction between them, then that constituent element of the offense was made out. The trial court did not err in refusing this charge.

Defendant testified in his own behalf, and gave his version of the transaction. Charge No. 6 makes the substance of that version, its hypothesis, and asks the court to instruct the jury, “if this is all the evidence shows, the jury should find him [defendant] not guilty.” It is manifest, if what that charge hypothesizes constitutes all the defendant intentionally did, he was not guilty. It would be for the jury to determine, under all the evidence and circumstances, whether that was all he intentionally did; in other words, whether.without his knowledge, either expressed or implied, Baldwin took the bottle and left a half-dollar in its stead. If this was the case — the entire case — there was no intentional sale, and no violation of the law. This charge ought to have been given.

Beversed and remanded. The defendant to remain in custody until discharged by due course of law.