CASES

IN THE

SUPREME COURT OF ALABAMA.

DECEMBER TERM, 1876.

Smith v. The State.

Indictment against Retailer of Spirituous Liquors.

1. Constitutionality of act of March 18, 1875, "to render more explicit and to provide for the better enforcement of the provisions of law in reference to the sale or giving away of spirituous, vinous, or malt liquors."-The act approved March 18, 1875, entitled "An act to render more explicit and to provide for the better enforcement of the provisions of law in reference to the sale or giving away of spirituous, vinous, or malt liquors in this State" (Sess. Acts 1874-5, p. 280), is not violative of the constitutional provision, contained in the second section of the fourth article, which declares that "each law shall contain but one subject, which shall be clearly expressed in its title."

2. Challenge of juror for cause; when made, or waived.-In capital felonies, a juror who has been accepted and sworn, whether he be one of the regular pannel or a talesman, cannot, without the consent of the prisoner, be afterwards set aside, nor challenged, for cause existing when he was sworn, although such cause was not discovered until after he had been accepted and sworn; but, in cases of misdemeanors, and felonies not capital, a regular juror may be challenged for cause at any time before he is by some positive act accepted; mere silence as to him while challenging other regular jurors, when they are called together to the box by the order of the court, is not a waiver of the right to challenge him for cause subsequently discovered; and as to talesmen, the right of challenge for cause, discovered after acceptance, though previously existing, may be exercised at any time before the juror is sworn, or at least before the ceremony of administering the oath to him is begun. (Overruling Stalls v. The State, 28 Ala. 25.)

3. Same; what is good cause.-In any criminal case, whether a felony or misdemeanor, it is a good ground of challenge for cause by the State, that a person will not as a juror convict on circumstantial evidence.

4. Same,-On the trial of a person for selling liquor to a man of "known intemperate habits," a juror who served on the trial of another person, charged with selling to the same man, may be challenged for cause on that ground, or set aside by the court, although the statute (Rev. Code, § 4180) does not expressly declare him subject to challenge for cause. (Overruling Boggs v. The VOL. LV.

(2)

[Smith v. The State.]

State, 45 Ala. 30, and Lyman v. The State, 45 Ala. 72, in which the specified grounds of challenge were held to be exclusive of all others.)

5. Organization of petit jury; supplying vacancies.-On the trial of misdemeanors, and felonies not capital, vacancies in the petit jury, caused by the challenge and discharge of regular jurors, may be supplied, at the discretion of the court, either by calling other regular jurors, or by summoning talesinen; and the exercise of this discretion is not revisable on error.

6. To what witness may testify.-A witness, well acquainted with the habits of the person to whom liquor was sold by the defendant, may testify that he is a man of intemperate habits," but not that he is "of kown intemperate habits." (Overruling Stanley & Elliot v. The State, 26 Ala. 26.)

66

7. What constitutes " intemperate habits" question of fact for jury. The frequent use of intoxicating liquors to an excess, producing either drunkenness or any change, mental or physical, from the natural condition of sobriety, constitutes intemperate habits within the meaning of the statute (Rev. Code, § 3618); and whether a person is "of intemperate habits," is a question of fact for the determination of the jury.

8. Selling liquor to person of "known intemperate habits;" constituents of offense; guilty knowledge. —To authorize a conviction for selling liquor to a person of known intemperate habits," the jury must be satisfied from the evidence that the defendant had knowledge of such intemperate habits; and they may infer guilty knowledge on his part, from the fact that he had good reason to believe that such were the habits of that person; but this is an inference of fact to be drawn by the jury, and not a presumption of law to be drawn by the court.

9. Same; charge as to guilty knowledge.-The notoriety of the intemperate habits of the person to whom the liquor was sold, in the neighborhood in which the defendant resided, is a fact from which the jury may infer knowledge by him of such habits; but a charge which, in effect, instructs them that they are bound to infer knowledge by him from that fact, is an invasion of their province, and therefore erroneous.

FROM the Circuit Court of Choctaw.

Tried before the Hon. LUTHER R. SMITH.

The indictment in this case, which was found in May, 1876, charged that the defendant, Richard B. Smith, "did sell, or give away, to John H. Wilson, a man of known intemperate habits, spirituous, vinous, or malt liquors, without the requisition of a physician for medical purposes." The defendant demurred to the indictment-1st, because it was founded on the act approved March 18, 1875, entitled “ An act to render more explicit and to provide for the better enforcement of the provisions of law in reference to the sale or giving away of spirituous, vinous, or malt liquors in this State, and said title does not express said law;" 2d, “because said act contains two distinct subjects, the first relating to criminal matters, and the second to civil matters only;" 3d, "because said act fails to set out or contain the law or laws so explained, revised, or amended;" 4th, "because said act is a revision, or amendment, of the laws heretofore existing on the subject of selling or giving away spirituous liquors, and fails to contain the law or laws so revised, amended, or explained." The court overruled the demurrer, and the defendant then pleaded not guilty.

[Smith v. The State.]

"On the trial," as the bill of exceptions states, "the following proceedings were had: Jury number one were ordered to take their places in the jury-box, and, the State having challenged two, and the defendant four of said jurors, and four jurors having been called from jury number two, they took their seats in the box. The solicitor then asked the court to allow him to ask a juror a question, and, permission being given, asked one of said jurors, if he would convict upon circumstantial evidence; to which said juror answered, that he would not. The solicitor then asked the court to excuse said juror for cause, and as a person unfit to serve on the jury, and the court excused him; to which action and ruling the defendant objected and excepted. The court then asked the remaining nine jurors, ex mero motu, if any of them had been members of the jury which, during the present term of the court, had tried another defendant charged with selling liquor to John H. Wilson, a man of known intemperate habits, to whom the defendant in this case was charged with selling liquor; and four of them having replied that they had served on the jury in said other case, the court thereupon, ex mero motu, excused them from serving on the jury in this case; to which action of the court the defendant then and there objected and excepted. There were then left, of the regular jurors, no others except those accepted, or challenged and excused, as above set forth, who had not been members of the jury in said other case; and the court thereupon instructed the sheriff to summon bystanders to complete the jury. The defendant insisted that the jury. should be completed from the regular jurors; but the court refused to so order, and the defendant then and there objected and excepted to said action and refusal. The sheriff then summoned four bystanders to complete the jury, two of whom were excused by the defendant, and the court then ordered the sheriff to summon other bystanders to complete the jury; to which the defendant excepted. After the jury was thus completed, and before the talosmen were sworn, the solicitor asked the court to allow him to ask one of the jurors, whether he would convict upon circumstantial evidence; to which the defendant objected, but the court overruled his objection, and allowed the question to be asked; and the juror having replied, that he would not, the solicitor asked that said juror be excused; to which the defendant objected, and excepted to the action and ruling of the court allowing it. The court then ordered the sheriff to fill the place of said juror by summoning one of the bystanders; to which the defendant objected, and reserved an exception." Several witnesses were introduced on the part of the pros