[Weed v. The State.]

their verdict fining him $500, the limit of the law, when there were no circumstances of aggravation in the case, and they might well have believed, from the evidence, that he acted in good faith, and without any criminal intent.

JNO. W. A. SANFORD, Attorney-General, for the State. 1. The indictment pursues the statutory form, and must be deemed sufficient. Rev. Code, § 4141; Form No. 31, p. 811. 2. Questions of pedigree, including births, marriages, deaths, &c., may be proved by hearsay evidence.-1 Greenl. Ev. §§ 103, 104; Childress v. Cutter, 16 Missouri, 24-47. The witness Bell stated the facts on which his opinion was founded, and which showed that he was competent to testify as to the age of Law.

3. The exception to the charge of the court is general, and too indefinite.-Chatteaux v. The State, 52 Ala. 388; Jacobson v. The State, at the present term.

66

MANNING, J.-Section 3619 of the Revised Code makes it penal to sell, give, or deliver any vinous, fermented, or spirituous liquors, "to any minor, apprentice, student, or pupil," &c., without the consent of the parent, guardian, master, or other person having the legal charge of such minor, apprentice, student, or pupil," &c. The indictment against appellant is, that he "sold, gave, or delivered to one John Law, a minor, vinous, fermented, or spirituous liquors, without the consent of the parent, guardian, or person having the legal charge of the said John Law," &c. And this is exactly according to the form prescribed in the Revised Code of an indictment for this offense, except that the form does not contain the word "legal" before charge. A demurrer to the indictment was overruled; and it is insisted that this was erroneous, because the indictment omitted the word "master," used in the section creating the crime. It is true that, in Bryan v. The State (45 Ala. 86), it was held, that the omission of the word "master," and of the word "legal," in the similar indictment in that case for selling spirituous liquors to a minor, made it insufficient, although neither word was contained in the form prescribed by the Code. We cannot adopt that ruling. "Master," in the statute, is introduced in relation to "apprentice," and, perhaps, "student or pupil;" and certainly may not be carried into the indictment, when the offense charged is the sale of the forbidden liquor to a minor. Indeed, since master, as used in the section, comes under the general description of a "person having the charge of such apprentice, student, or

[Weed v. The State.]

pupil," and is not contained in the form of indictment that has been provided by the legislature for the offense, we are of opinion that the omission of it from the indictment would not vitiate, even if the charge was of a sale of such liquors to one of them. There was no error in overruling the demurrer. The case of Bryan v. The State is overruled.

2. There was no objection to the testimony given, probably with reluctance, by the minor Law, that he was not, when he testified, twenty-one years old. The sale of spirits to him, which was the cause of the prosecution, took place two years before that time; so that, in the absence of any evidence to the contrary, the fact of his minority at the time of such sale was established, if the jury did not disbelieve the witness. In reference to the testimony of Bell, the uncle of Law, counsel are in error, in treating it and arguing upon it as secondary, or hearsay evidence. We are not under the necessity of considering whether or not it was admissible on the ground of the well known exception to the general rule, when matters of pedigree are to be proved. Mr. Bell testified that, when he came from South Carolina to Alabama, twenty years and a few months before that time, he found John Law a small infant less than one year old. True, he could not say what his age was exactly, but he did testify: "Judging from his size and appearance when I first saw him, twenty years ago last fall, I can and do say, that he is not, to the best of my belief, twenty-one years of age now." The indictment in the cause was found by the grand jury eighteen months before this testimony was given, and the sale of the liquor was proved to have been made in the spring before. It was shown that Law's parents were still living, and resided in the county, whence it was further supposed that there was some sort of record of Law's age also within the reach of the court;" and thereupon the testimony of Bell was objected to, as secondary evidence only. But the fact that the parents might be able to prove the date of Law's birth with more exactness than Bell could, does not make his testimony what is called secondary evidence. Although it might not be so satisfactory as theirs, it is of the same nature-original, direct testimony of what he saw of a child that had grown up from a small infant within his view. The objection to the testimony was, therefore, properly overruled.

3. It is not error on the part of a judge, in charging the jury, to call their attention to the consequences to society, and especially to the evil to the youth of the country, of suffering the retailers of spirituous liquors to sell such liquors to them; or to inform the jury that if, upon the evidence,

[Adler v. The State; Pause v. The State; Simon v. The State.] they find the defendant guilty, they should impose such a fine upon him as would deter him and others from thus violating the law hereafter. This but expresses the object of the law; and we do not find that, in explaining it to the jury, the bounds were transcended which are necessary to prevent a presiding judge from invading the province of the jury, or doing injustice to a defendant on trial.

Let the judgment of the Circuit Court be affirmed.

Adler v. The State.

1.

Pause v. The State.

Simon v. The State.

Indictments against Retailers of Spirituous Liquors.

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 "cach law shall contain but one subject, which shall be clearly expressed in its title."

2. Judicial knowledge of meaning of words, and of Webster's Dictionary.—The court will take judicial notice of the meaning of the words "malt liquor," as used in a penal statute, and may, in a proper case, give its definition in charge to the jury; but it will also take judicial notice that "Webster's Unabridged Dictionary" is a standard authority as to the meaning of English words, and may permit his definition of those words to be given in evidence to the jury.

3. Selling liquor to minor; constituents of offense.—A criminal intent being an essential element of a criminal offense, a conviction can not be had under the statute prohibiting the sale of spirituous liquors to minors, if the sale was made by the defendant under the honest (though mistaken) belief that the minor had in fact attained his majority; but, whether the sale was made bona fule, under this honest belief, is a question of fact for the determination of the jury, under appropriate instructions from the court.

4. Same; consent of father.-The consent of the father, given to his minor son, that he might drink lager beer, or other kind of liquor, affords no excuse to the person who sells or gives it to him.

5. Same; alternative averments as to kind of liquor sold.—To authorize a conviction under an indictment for selling "vinous or malt liquor" to a minor, the sale being clearly proved, and that the liquor sold was either vinous or malt, it is not necessary that the jury should, by their verdict, find whether the liquor was vinous or malt; and a charge asserting the contrary proposition is properly refused.

6. Same; what are "vinous liquors."-Vinous liquors, as the term is used in this statute, ex vi termini, mean liquor made from the juice of the grape.

[Adler v. The State; Pause v. The State; Simon v. The State.] FROM City Court of Montgomery.

Tried before Hon. JOHN A. MINNIS.

These three cases, though decided together, because they presented substantially the same questions, were brought up on separate records, and were argued and submitted at different times.

In the case of Leopold Adler, the indictment contained five counts; but the jury, by their verdict, found the defendant guilty under the third count only, which charged that he "did sell to one Silas Berry, a minor, spirituous, vinous, or malt liquor, without the requisition of a physician for medicinal purposes." On the trial, as appears from the bill of exceptions, Silas Berry was introduced as a witness by the State, and testified, "that he was under twenty-one years of age at the time of the trial; that the defendant, within twelve months before the finding of the indictment, in the city and county of Montgomery, sold him a glass of lager beer; and that he did not have the requisition of a physician therefor for medicinal purposes, and did not have the consent of his father to buy or drink the same. The defendant offered to introduce evidence that, before the sale of said lager beer to the witness, Berry, he, witness, had told several persons, out of the defendant's bar-room, that he was twenty-one years old, and they had told this to the defendant before the said sale; but the court, on the objection of the solicitor, refused to allow this evidence to go to the jury; to which the defendant excepted. The defendant introduced evidence, also, that said Berry, before the sale of said lager beer to him by the defendant, told persons in the defendant's bar-room, where said lager beer was sold to him, that he was twenty-one years old; but there was no positive evidence that, before said sale, defendant had heard him say so, or had been told by others who heard him say so."

"For the purpose of showing that lager beer is a malt liquor, the solicitor offered in evidence Webster's Unabridged Dictionary, and the definition therein contained of the words 'malt liquor.' It was admitted by the defendant that said book was a standard work of English words and their definitions; but he objected to said evidence, on the ground that it was not competent evidence to ascertain the meaning of the words 'malt liquors' as used in the statute; and also because there was no definition of lager beer read to the jury from said book, or elsewhere, and that the definition of 'malt liquor' given in said book did not tend to show that lager beer was a malt liquor. The court overruled the objections, and allowed the book to be read to the jury; to which the defendant excepted.

[Adler v. The State; Pause v. The State; Simon v. The State.] "The defendant asked the court, in writing, to charge the jury, that if they believed, from the evidence, that the witness Berry, before he bought the lager beer from Adler, told said Adler that he was twenty-one years old, or told any person in Adler's place of business, who communicated it to said Adler before the sale to said Berry; and that Adler believed from this that said Berry was twenty-one years old, and had no reason to doubt it,-then the defendant could not be convicted; and that the defendant need not introduce positive evidence of these facts, but, to ascertain their truth, the jury may take into consideration the circumstances of the case, the relations between Adler and the persons to whom Berry told this in his place of business, and all other facts which tend to throw any light on the subject. The court refused to give this charge, and the defendant excepted to its refusal."

In the case of Julius Pause, the indictment also contained five counts; and there was a verdict of "guilty under the fifth count only," which charged that the defendant "did sell, or give away, to one Thomas Cowles Wilson, a minor, spirituous, vinous, or malt liquor, without the requisition of a physician for medicinal purposes." On the trial, as appears from the bill of exceptions, the State proved by said Thomas Cowles Wilson, that the defendant sold him a glass of lager beer within the time covered by the indictment; that he was under twenty-one years of age at that time, and that he did not have the requisition of a physician for medicinal purposes. To show that lager beer is a malt liquor, the solicitor offered in evidence the definition of 'malt liquor' as found in Webster's Unabridged Dictionary; to which the defendant objected; but the court overruled his objection, and allowed the same to be read in evidence to the jury; to which action of the court the defendant excepted. The solicitor introduced other evidence that lager beer is a malt liquor. There was evidence, also, that lager beer is not a malt, but a vinous liquor; that it was not made from the juice of the grape, but was called a vinous liquor, because it underwent what is I called a vinous fermentation, similar to that which the juice of the grape undergoes in making wine; and there was other evidence, also, that there are various other kinds of beer which are not malt liquors-that is, not made from malt, and in which malt forms no part."

The defendant requested the following charges in writing: "1. If the jury are in reasonable doubt, from the evidence, whether lager beer is a malt liquor or a vinous liquor, they must acquit the defendant: they can not convict, because