Collins v. State , 152 Ala. 90 ( 1907 )

DENSON, J.

Upon the trial of this case it was proved, without conflict in the evidence, that A. D. Wilburn carried on, in the town of Faunsdale, the business of a retail dealer in spirituous, vinous, and malt liquors, and that the defendant was his clerk and sold such li-. quors for the said Wilburn at his place of business in Faunsdale, in Marengo county; that during a part of the time such business was carried on, and when defendant sold the liquors, a dispensary was in operation with- . in the said town. Said Wilburn, before engaging in said business and before the defendant sold the liquors, applied to Hon. S. H. Sprott, judge of the Sixth judicial circuit, for a mandamus to compel the judge of probate of Marengo county to issue to him a license as a retailer of spirituous, vinous, and malt liquors in Faunsdale. The application was in all things regular, and showed that the petitioner was entitled to have the license issued, provided the act authorizing the establishment of a dispensary at Faunsdale, approved September 26, 1903, was not constitutionally enacted. On presentation of the application for mandamus to Judge Sprott, he granted a rule nisi to the probate judge, commanding him to issue the license as prayed, or appear at the nest term of the circuit court of Marengo county and show cause why he should not issue the license. Upon the service of the rule on the judge of probate he'issued the license, and Wilburn held the license when the defendant made the sale of liquors for which he was indicted. All this the defendant sought to show in his defense; but, on objection by the state, the court ruled that such evidence was not competent or relevant. On June 30, 1905, the act authorizing the establishment of the dispensary at Faunsdale was held to be constitutional.— State v. Wilburn, (Ala.) 39 South. 816; City of Uniontown v. Glass, 145 Ala. 471, 39 South. 814. And, while the question is again presented in this appeal, we decline to reopen it; nothing new being now suggested.

It is urged, however, that, notwithstanding the act is constitutional, the license, having been granted' in response to a rule nisi, protected the defendant from prosecution. This contention, according to previous decisions of this court, is unsound. — Brame’s Case, 148 Ala. 629, 38 South. 1031; Russell's Case, 77 Ala. 89; Norwood v. Louisville & Nashville Railroad Co., 149 Ala. 158, 42 South. 683; Boyd’s Case, 53 Ala. 601.

It is further argued that, as the defendant was operating under a license, valid or invalid, there was a lack of intent to commit a crim.e, and the defendant should have been permitted to offer the evidence to show the lack of intent. Guilty knowledge or intent is generally an essential element in crime; but under a statute providing police regulations, which makes the doing of a certain act a misdemeanor, the doing of the act voluntarily is evidence of the unlawful intent, and no other is requisite. — Bain’s Case, 61 Ala. 75; Mullen’s Case, 82 Ala. 42, 2 South. 481, 60 Am. Rep. 731; Thomas’ Case, 92 Ala. 85, 9 South. 398; Barker’s Case, 126 Ala. 83, 28 South. 589; Fielding’s Case, 135 Ala. 56, 33 South. 677. It follows that the court did not err in declining to admit the evidence to which we have referred. Nor could the fact that the dispensary sold its stock of liquors to Wilburn after he obtained the state and county license, or the granting of a license to him by the city, have been any excuse or defense.to the indictment. The city was without authority to issue such license. — Loc. Acts 1903, pp. 559, 562.

There is no error in the record, and the judgment of conviction is affirmed.

Affirmed.

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