
    Jones v. The State.
    
      Indictment for lllégál Sale of 'Liquor.
    
    I: Selling liquor “drunk on or about premises.” — To a prosecution for selling, without a license and contrary to law, spirituous, vinous or malt liquors whichwere drunk on or about the premises” (Code, § 4036), it is no defense that the liquor was so drunk without the knowledge of the defendant, and against his caution to the contrary.
    2. Same.; sufficiency of evidence as to .particular offense. — Under an indictment for selling spirituous, vinous, or malt liquors, without a-license and contrary to law, where there is evidence that sales were made within twelve months before the finding of the indictment, it is not necessary that the witness should particularize any one sale, or any one day on which sales were made.
    3. General affirmative charge in criminal case. — In a criminal case, where the evidence of the defendant’s guilt is clear, positive and undisputed, the giving of the general affirmative charge for the State is not an invasion or denial of the defendant’s constitutional right to a trial by jury; and the fact that the evidence against.the defendant is the testimony of a witness unfriendly to him does not render the giving of such charge improper, as the charge leaves to the jury the’ credibility of the evidence.
    Appeal from tbe Circuit Court of Tuscaloosa.
    Tried before tbe Hon. S. H. Sprott.
    Tbe indictment in this case contained four counts. Tbe first count charged tbat tbe defendant, Will Jones, “did engage in or carry on tbe business of selling spirituous, vinous or malt liquors in quantities of less than one- quart, iñ a place of less tban one thousand inhabitants, without a license and contrary to law;” tbe second-count charged tbat be “engaged in or carried on tbe business of a retail liquor dealer in a place of, less tban one thousand inhabitants,without a license and contrary to • law; ” tbe third count charged tbat be “sold spirituous, vinous or malt liquors which were drunk on or about tbe premises, without a license and contrary to law;” and tbe fourth count charged tbat be “sold spirituous, vinous or- malt liquors, in a place of less than one thousand inhabitants, by tbe quart or more, and did permit tbe same to be drunk by tbe glass or single drink in or about bis place of business, without a license and contrary to law.” The case was tried upon issue joined upon tbe plea of not guilty. Tbe evidence is sufficiently stated in tbe opinion. Upon tbe introduction of all tbe evidence the solicitor asked the court in writing to charge tbe jury, “that if they -believe the evidence they must -find the defendant guilty.” To the giving of this charge the defendant duly excepted. There was a verdict of “guilty as charged'in the third count of the indictment,” and judgment was rendered accordingly.
    Wood & Mayfield, for the appellant,
    contended that the giving of the general affirmative charge in favor of the State ■ was error, and cited Perkins v. State, 50 Ala. 154; Proffott on Jury Trial, § 353; Dunman v. State, 14 Ala. 242; Easterling v. State, 30 Ala. 242; Daly v. State, 33 Ala. 431.
    Wm. L. MabtiN, Attorney-General, for the State,
    cited Whatley v. State, 87 Ala. 83; 88-.Ala. 115, 235; 89 Ala. 16, 23, '105; 90 Ala. 638; 91 Ala. 61, 70.
   THOB.INGTON, J.

The argument of defendant’s counsel that the giving of the general affirmative charge ■ for the State was an invasion or denial of defendant’s constitutional right to a trial by jury can not prevail. It has been to.o long and too firmly settled in the jurisprudence of this State now to be disturbed, except by legislation, that giving of such charge by the trial court, in a criminal case, is not a denial or impairment of the defendant’s constitutional right to a trial by jury, when the evidence of. guilt is clear,-positive and undisputed. — Johnson v. State, 91 Ala. 70; Olmstead v. State, 89 Ala. 16; Brinson v. State, Ib. 105; Prestwood v. State, 88 Ala. 235 ; Cagle v. State, 87 Ala. 38.

In this case the fact of sale is undisputed, so also is the fact that the liquor sold -by defendant was drunk “about the premises,” as that language in the statute has - been construed by the decisions of this court. — Pearce v. State, 40 Ala. 720; Patterson v. State, 36 Ala. 297; Brown v. State, 31 Ala. 353; Easterling v. State, 30 Ala. 46. The State’s witnesses-all testified to sales of liquor by defendant, and that they ■ saw liquor that was sold in the house where defendant made sales drunk in the rear,- and within fifteen feet- of the house, and between the house and the fence; but-all of said witnesses, excepting the witness, Fair, testified that they-did-not know whether the liquor they saw drunk in rear of the house was the liquor sold by defendant.

If, the evidence had stopped here, it would have been a matter of inference for the jury, from all the facts and circumstances in proof, whether any portion of the liquor sold by defendant was the identical liquor that was drunk on or about the premises, and it would have been error in the court to have given tbe general affirmative charge on that state of tbe proof. Tbe witness, Pair, however, testifies clearly and positively that be not only saw defendant sell liquor, but that be saw tbe liquor so sold by defendant drunk in tbe rear part of tbe store in which it was sold by defendant, and in this be is uncontradicted. True, defendant, in bis own statement to tbe jury, denies that any of tbe liquor sold by him was drunk on or about tbe premises within his knowledge, and be further testified that be always cautioned parties to whom be sold liquor not to drink it on or about the premises; but neither tbe statute, nor tbe decisions of this court, make tbe guilt of tbe accused, in such cases, depend on bis knowledge, consent, or permission as respects tbe drinking of tbe liquor on or about bis premises. In the case of Pearce v. State, supra, tbe court at tbe request of tbe State, and against tbe objection of tbe defendant, instructed tbe jury that tbe defendant would be guilty on tbe facts postulated in tbe charge “although defendant did not give said Maynard (tbe purchaser) permission to drink said liquor on or about bis premises, and did not know that tbe same was so drunk.” And in the same case tbe court re-refused to charge tbe jury, at defendant’s request, as follows: “1st, that it is necessary, to constitute tbe guilt of defendant, that be should have consented that tbe liquor be drunk on or about the premises; 2nd, that if tbe jury find that tbe defendant sold tbe liquor to Maynard, without knowing that it would be drunk on or about tbe premises, and without knowing that it was being drunk about tbe premises, and without any consent on bis (defendant’s)’ part that it should be drunk on or about tbe premises, and that tbe liquor was in fact carried beyond tbe view and control of tbe defendant, and out of sight from tbe place where it was sold, that tbe defendant did not know,_and could not have known where tbe liquor was drunk, and could not have seen tbe persons drinking it from where be was, and where be sold it, then tbe jury can not find tbe defendant guilty.” This court sustained tbe ruling of tbe Circuit Court in relation to tbe charge given and the two charges refused. In Brown v. State, supra, tbe court, in construing a similar statute, declares that “it ignores consent and privity as an element of tbe offense.” In that case there was a dissenting opinion presenting views not unlike those now urged by defendant’s counsel, but tbe opinion of tbe majority of the court, from which we have quoted, has not only remained undisturbed but has frequently been cited and re-affirmed. And tbe same is true of tbe case of Pearce v. State, notwithstanding tbe severity of tbe rule it lays down- was fully recognized by tbe court. — Powell v. State, 63 Ala. 177; Whaley v. State, 87 Ala. 83.

Tbe fact that tbe cross-examination of tbe witness, Fair, developed that be and tbe defendant were unfriendly at tbe time of tbe sales testified to by Fair, and that tbeir relations continued unfriendly to tbe time that tbe witness testified, presented no reason wby, if tbe testimony authorized it, in other respects, tbe general affirmative charge should not have been given. That charge did not withdraw from tbe jury a consideration of tbe credibility of tbe witnesses — it did not require tbe jury to accept tbe testimony of tbe witness, Fair, as true, whether they believed it to be so or not. Mere unfriendliness existing between tbe witness and tbe defendant did not disqualify tbe former from testifying, nor did it necessarily or per se impair or affect tbe testimony of tbe witness. The jury were authorized to accept bis testimony as true, and tbeir verdict implies that they did so accept it. In Brown v. State, supra, it is said: “When, however, as in this case, tbe testimony is plain and simple, and tbe place where tbe drinking is done is obviously about tbe premises of the seller, tbe credibility of tbe evidence, and tbe amount of the fine, are the only questions for tbe jury.” Tbe case of Daly v. State, 33 Ala. 431, cited by appellant’s counsel, is distinguishable from this, in that the proof was silent as to tbe location of tbe place, where tbe liquor was drunk, with reference to defendant’s premises. It was there shown that tbe drinking took place in an alley leading from tbe street by defendant’s bouse, but it was not shown bow far tbe alley extended, or at what place in tbe alley tbe liquor was drunk, and this court held these were matters of inference for tbe jury; — while there can be no doubt that tbe liquor sold by defendant was drunk on or about bis premises, as those words are construed by this court.

It being shown that sales were made within twelve months before tbe finding of tbe indictment, it was not necessary that tbe witnesses should particularize any one sale, or any one day on which sales were made. — Olmstead v. State, 92 Ala. 64.

Tbe Circuit Court did not err in giving tbe general affirmative charge, and its judgment is accordingly affirmed.  