
    Maxwell v. The State.
    
      Indictment for selling Spirituous, Vinous or Malt Liquors contrary to Lato.
    
    1. Selling whiskey contrary to law; constituents of offense. — To constitute the offense of selling, giving away or otherwise disposing of spirituous liquors, as prohibited by statute, it is necessary that the evidence should establish that the person charged, parted with, to another, the poss ssion or ownership of whiskey; and if the defendant neither had possession of, nor owned the whiskey, his delivering it to another, though wrongful as against the owner of tne whiskey, does not make him guilty of the offense charged.
    2. Indictment for selling liquor; what in violation of law. — Under an indictment for selling, giving away or otherwise disposing of spirituous liquors contrary to law and walkout a license, the defendant cannot be convicted, where the evidence shows that he had no interest in the liquor sold, that it belonged to his father, who was away, and that at the request of the person who obtained the liquor, he got the liquor from some which his father had, and in so doing acted only as the agent of said person, and was paid a much smaller amount for his -trouble than the value of the whiskey.
    Appeal from the City Court of Anniston.
    Tried before the Hon. Thomas W. Coleman, Jk.
    The appellant in this case, Buck Maxwell, was tried and convicted under an indictment which charged that he “sold, gave away, or otherwise disposed of spirituous, vinous or malt liquors without a license and contrary to law, against the peace,” etc. The cause was tried by the court without the intervention of a jury upon the following testimony: G. S. Harmon, a witness for the State, testified that within twelve months before the finding of this indictment, he went to the mill owned by John H. Maxwell, the father of the defendant, and asked for the defendant’s father, and was told that he was away from tlie mill; that he waited for the return of the said John Maxwell for about two hours, and then stated to the defendant that he could wait no longer, and told him that he wanted to get from the defendant’s father some whiskey for his, witness’s Avife, Avho was sick, and asked the defendant to take the bottle Avliicli he gave him and see' i f he could get the Avhiskey for him, stating to defendant that it Avould be all right with his father, and that his father had before given him whiskey for his Avife; that the defendant took a quart bottle Avliicli the witness gave him, Avent aAvay and brought back a quart of Avhis-key and put it in the witness’s buggy; that thereupon the Avitness handed to the defendant 25 cents and said to him: “That is for your trouble;” that a quart of whiskey Avas Avortli 50 cents and that he kneiv defendant was under age.
    Defendant as a Avitness ifi his own behalf testified to substantially the same facts as were testified to by the Avitness Harmon, and in addition testified that he Avas 1G years old; that the Avhiskey belonged'to his, defendant’s, father; that the defendant had no control over it, or interest in the Avhiskey; that he was not authorized by his father to sell it, give it away, or exercise any control over it whatever.
    John T. Martin and Matti-ieavs & Wiiitioside, for appellant,
    cited Reynolds v. titate, 73 Ala. 3; Amos v. titule, 73 Ala. 501; 8 Amer. & Eng. Encvc. of Law, 3309; Coker v. titate, 91 Ala. 92; Maples v. titate, 130 Ala. 121; Campbell o. titate, 79 Ala. 271; Du,hois o. titule, 87 Ala. 38.
    Massey Wilson, Attorney-General, for the State,
    cited Marcus v. titate, 89 Ala. 23; Billingslea v. titate, 96 Ala. 114; Thomas v. titate, 117 Ala. 134; Abel v. titate, 90 Ala. 631; Winter v. titate, 133 Ala. 176.
   TYSON, J.

To constitute the offense for which the defendant was convicted, the fact must be established by the eAddence that he parted with, to another, the possession or ownership of the whiskey. If defendant had not possession of it, nor owned it, Ms delivering it to tbe witness for the prosecution ivas wrongful as against the owner of it, and constituted neither a sale, gift nor disposition of it.

In Amos t>. State, 73 Ala. 501,. speaking to this question this court said: “The effective words are sell, give away, or othemoise dispose of; all of which in a general sense, found in this connection, signify some act by which one person parts with, to another, possession or ownership of property. A sale, ex vi termini, imports tlie transfer of personal property upon a valuable consideration; and a gift imports a like transfer gratuitously, or upon a merely good consideration. The more general words, or othemoise dispose of, following the more specific or particular words, sell, or give aioay, upon a settled rule of statutory construction, a large legislative intention not being clearly expressed, must be construed as extending only to a disposition ejusdem generis with a sale or a gift; they are not to be extended to any and every act which may be said to be a disposition. * * It would be a departure from the rule, not necessary to give effect to the legislative intent, and not within it, to give the general words, or otherwise dispose of, a meaning so loose and expansive as to include within them any act not akin to a sale or gift, not intended as, and not having in it any of the properties of, a parting with property by one person to another.”

Under these principles, the only possible theory upon which the conviction in this case can be sustained, is to find from the evidence that defendant was acting as the agent of his father in delivering the whiskey, and that he had authority from him, either expressed or implied, to part with it to Harmon.

Upon a consideration of all the evidence our conclusion is that it simply establishes the fact that the defendant, in getting and delivering the whiskey, was.not acting for his father at all, but for Harmon. The case, therefore, belongs to that class of cases where the defendant acted only as the agent or friend of the purchaser in procuring the whiskev. Tn nil such cases it has been uniformly held bv this court that conviction cannot be had.-Bonds v. State, 130 Ala. 117.

In conclusion, it may be well to note that this case was tried by the judge without a jury, under the act declaring the powers and jurisdiction of the city court of Anniston; and that under that act his conclusion and judgment on the evidence are made reviewable by this court.—Acts, 1896-97, p. 324.

The judgment of conviction will be reversed, and one will be here entered discharging the defendant.

Reversed and rendered.  