
    Hallmark v. The State.
    
      Selling or Giving Atoay Liquor.
    
    (Decided Feb. 3, 1909.
    48 South. 670.)
    
      Intoxicating Liquors; Evidence; Jury Question. — Under the evidence in this case it was a question for the determination of the jury as to whether the defendant was guilty of violating the local prohibition law, and the court improperly directed the verdict.
    Appeal from St. C'lair- Circuit Court.
    Heard before Hon. John W. Inzer.
    From a conviction for giving- away intoxicating liquor, George Hallmark appeals.
    Reversed and remanded.
    James A. Embry, for appellant.
    Under tbe undisputed evidence in this case the defendant was not guilty as charged. — Campbell v. The State, 69 Ala. 271; Morgan v. The State, 71 Ala. 72.
    Alexander M. Garber, Attorney-General, and Thomas W. Martin, Assistant Attorney-General, for the State.
    The effect- of the defendant’s conduct was to violate the law as found in Acts 1894-5, p. 242. — Reynolds v. The State, 73 Ala. 3; Abel v. The State, 90 Ala. 631; Ooker v. The State, 91 Ala. 92.
   MAYFIELD, J.

The defendant was indicted for giving away or otherwise disposing of spirtuous, vinous, or malt liquor. The indictment is based on section 3 of a local prohibition act for St. Clair county (Acts 1894-95, p. 242), which inhibits the sale, giving away, or otherwise disposing of spirituous and other liquors named. Section 2 of the act prohibits the purchase of liquors for one’s self, or as agent for aonther, or orderiing the same, except in certain cases; but it is unnecessary to notice this section, as the indictment did not charge an offense thereunder, and the general affirmative charge given for the state shows the trial and prosecution were under the third section of the act. The charge directs that the jury, if they find the defendant guilty will impose a fine of not less than $50 nor more than $500, which is the penalty provided for violations of the third section of the act; while for violations of the second section a different penalty is imposed.

The only evidence of the state was that of one Ramsey, who testified that on one occasion he went into a packing house at- Steele, in St. Clair county, and there found defendant, sitting on some sacks of grain; that defendant said to.him, “If you want anything there is some over there,” and pointed to a bottle, which'was on some sacks of grain a few feet away from defendant; that witness took a drink out of the bottle; that the bottle contained whisky; that he took only the one drink, and went out, leaving the defendant and the bottle in the packing house, exactly as he found them. The venue and time were properly proven. The state then introduced in evidence the local act for that county (Acts 1894-95, p. 242), prohibiting the sale, gift, or otherwise disposing-of spirituous liquors, etc., in that county, and rested. The defendant then moved the court to exclude the state’s evidence, because it was not sufficient to support a conviction. The court overruled this motion, and the de fendant excepted. The defendant then testified, in his own behalf, that the testimony of the witness Ramsey was all true; that the whisky did not belong to witness; that it belonged to one Porter Casey; that he had taken a drink out of it, when he first went into the packing house; that he left the bottle of whisky in the packing bouse, when be went out, and did not know what became of the bottle or tbe whisky remaining in it when be left it there in tbe bouse where he found it. Tbe defendant then rested. This was all tbe evidence'. Tbe court, at the request of the solicitor, gave to tbe jury tbe general affirmative charge, with usual hypothesis, against tbe defendant, and directed tbe assessment of a fine, in an amount within tbe maximum and mimimum amounts fixed by tbe .statute.

There was no error in the court’s declining to exclude tbe state’s evidence. Tbe jury might have inferred a gift, in violation of tbe statute, from this evidence; but it was clearly reversible error to give tbe general affirmative charge against tbe defendant. If he was guilty, it rested in inference from the facts proven by the state; and tbe defendant’s evidence, if true, certainly tended to rebut tbe inference of guilt. We do not decide, because not necessary, that tbe evidence would not support a conviction by tbe jury, under proper instructions, yet it was certainly meager enough at best for tbe state for this purpose. It is wholly insufficient to support tbe general affirmative charge for tbe state. There was much more reason to support this charge in behalf of the defendant than for tbe state, though Ave do not decide that it would have been proper in behalf of tbe defendant. Tbe jury might have believed that this evidence Avas only a part of tbe whole truth, and they might have been justified in inferring tbe other, from that before them. They might have thought that it Avas a mere ruse, an artifice, chicane, or finesse, on tbe part of these íavo witnesses, and, if so, a conviction might have been justified; but this is tbe exclusive province of tbe jury, and not of tbe court. Suppose A. and B. find C’s bottle of wbisky, and both take a drink out of it; is it possible that tbe one who found it first, and pointed it out to tbe other and suggested their taking a drink, is guilty of selling giving away, or otherwise disposing of liquor, in violation of that statute? We think not.

The judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.  