The appellant was convicted under an indictment charging that he “did sell or give spirituous, vinous or malt liquors to Lewis Erwin, a minor.” The evidence was that the minor, Lewis Erwin, who Avas 20 years of age, but a married man with a family, handed the defendant a half dollar and requested him to go and get some whisky for him; that defendant took the money, went and purchased the whisky with it, and brought it to said Erwin; and defendant received nothing from the transaction.
The appellant cites the cases which hold that one who acts merely as the agent of the purcharer in procuring whisky cannot be convicted of selling. — Maples v. State, 130 Ala. 121, 30 South. 428; Bonds v. State, 130 Ala. 117, 30 South. 427; DuBois v. State, 87 Ala. 101, 6 South. 381; Campbell v. State, 79 Ala. 271; Maxwell v. State, 140 Ala. 131, 37 South. 266. Counsel for the state reply that under the act of March 12, 1907 (Gen. Acts 1907, p. 366), the defendant was rightly convicted.
The indictment was filed September 2, 1907, and the witness testified that the whisky was procured about three months before he was before the grand jury. While the exact date when the witness was before the grand jury cannot be fixed, yet enough is shown to indicate that the liquor was procured after said act had become the law. Said act provides that “any person who shall act as agent or assisting friend of the seller or purchaser, in procuring or effecting the unlaAvful *139sale or purchase of any such liquors, must, on conviction, be fined not less than fifty dollars nor more' than five hundred, and may also be imprisoned, * and a conviction may be had for a violation of this act, under an indictment for retailing spirituous, vinous or malt liquors without a license and contrary to law.”
While the act does provide that a conviction may be had for a violation of this act under an indictment for “retailing spirituous, vinous, or malt liquors without a license,” yet it does not provide that a conviction may be had under an indictment for violation of section 5078 of the Code of 1896. The two sections relate to different subjects — section 5076 relating only to retainers, without license, selling to any one,.and section 5078 relating to sales in any quantity, whether with or without a license, to certain classes of persons. The punishment differs, and there is a separate form of indictment for each, in the Code. The act, then, does not authorize a conviction for its violation under the special form of indictment in this case, nor does section 5077 of the Code cover this case, as that relates only to retailers.
It results that the defendant was entitled to the general charge, and the court erred in refusing the same, and also in giving the several charges excepted to.
The judgment of the court is reversed, and the cause remanded.
Tyson, C. J., and Haralson and Denson, JJ., concur.