APPEAL from Franklin Circuit Court.

Hon. G. L. Cunningham, Circuit Judge.

The bargain was made at Mulberry, the money paid there to one of the firm and the liquor delivered there, and the •sale actually took place within the prohibited limits.

STATEMENT.

English, C. J. The indictment in this case alleged ill substance, that Major Yowell, on the fifteenth day of December, 1882, in the county of Franklin, and within three miles of the church and school house at Mulberry, did unlawfully sell to one A. C. Johnson one quart of spiritous and intoxicating liquor, when the county ■court of said county had made an order in compliance with the act approved March 21, 1881, prohibiting the sale or giving away of intoxicating liquors within three miles of the said church and school house at Mulberry, etc.

Dr. A. C. Johnson, a practicing physician, who resided near Mulberry, was the only witness examined at the trial, and the material facts proved by him are as follows :

Gatlin & Co., of which firm the defendant was a member, kept a licensed saloon at Ticon,' four miles from Mulberry, and Ed. Wilkerson was their clerk and bar-tender.

The doctor used Rocky Springs’ whiskey in filling prescriptions, and Gatlin & Co. kept that particular kind of whiskey at their saloon. He was in the habit of sending to Ed. Wilkerson, the bar-tender of the saloon, by persons-, going to Ticon, for that whiskey.

On a day not named, but within one year next before the finding of the indictment, the defendant and other persons,, were in a hack at Mulberry about to start for Ticon, and the doctor handed the defendant a dollar, and told hipa to-tell Ed. Wilkerson to send him a quart of Eocky Springs’ whiskey. The defendant, on his return from Ticon, delivered to the doctor, in Mulberry, a bottle of whiskey labeled in the hand-writing of Ed. Wilkerson, at Ticon. The dollar was banded to the defendant, and the bottle of whiskey was delivered by him to the doctor at-Mulberry, within three miles of the church and school house named in the indictment.

It was admitted that the county court of Franklin county, previous to the time alleged in the indictment, had made an order in compliance with the act of March 21st, 1881, prohibiting the sale or giving away of spiritous or intoxicating liquors within three miles of the church and school house named in the indictment and situated at Mulberry.

The defendant moved the court to instruct the jury as follows:

“That if they believed from the evidence, that the witness, Johnson, was a practicing physician, and met the defendant in Mulberry, and there handed him money, with a request to purchase for him the liquor mentioned in the indictment, and that the defendant accepted the money and went to Ticon, and there purchased from Ed. Wilkerson, the said liquor, and that the said Wilkerson labelled and directed it to the said Johnson, then the sale occurred at Ti-. con, and not at Mulberry, and the jury will acquit.”

…

Citation profile

How this case has been treated — in progress