Dees v. State , 16 Ala. App. 97 ( 1917 )

Counts 1 and 5 complied with the requirements of the statute and correctly charge violations of the prohibition law, and the demurrer to these counts was properly overruled. As no conviction was had on the other counts, it is unnecessary to rule upon them.

The statute (section 32 1/2 of the Fuller Bill, Acts 1909, p. 63; and Acts 1915, p. 33, § 32 1/2) authorizes the proof of similarity of liquors sold, kept for sale, etc., and, if the act by its terms did not so provide, the questions and answers would be competent. How else could it be proven, except by an analysis of the stuff itself. The statute, while aimed primarily at intoxicating liquors, goes further, and says, "or any device or substitute for any of them." Acts 1915, p. 31, § 31. This was intended to prevent the keeping for sale and selling of beverages that looked like prohibited liquors; so that those persons who were trying to avoid and thwart the various laws for the promotion of temperance could not use the imitations as a fence, to hide and cover the sale of the real thing. Therefore a liquor that foams like beer, smells like beer, looks like beer, tastes like beer, and is put up in bottles like beer, and has a name that suggests a very popular and well-advertised beer, is a "substitute or device," within the meaning of the law. Therefore this evidence was competent and properly admitted.

The Legislature was within its rights and had the power to fix the rule of evidence making the possession of the liquor prima facie evidence of guilt, and hence the section does not deprive the defendant of due process of law. 7 Mayf. Dig. 456, subhead; Fitzpatrick v. State, 169 Ala. 5, 53 So. 1021; Bailey v. State, 161 Ala. 75, 49 So. 886. No briefs having been filed on this question, the court will not consider the constitutionality of this section further. Fitzpatrick v. State, supra.

The other exceptions to the court's rulings on the evidence were, if error, without injury to the defendant.

This disposes of all the questions presented by the record except that of defendant's guilt. The court had the witnesses and the beverage before it. This court has not the benefit of all of the evidence; and, in the absence of a part of the evidence, this court will not consider the exceptions to the findings of the lower court on the facts.

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

Affirmed.