#### Harrison *v.*The State.

*Indictment for Selling 'Liquor without License.*

1. *Hale of imported liquors; original or broken packages.*— When spirituous liquors, or intoxicating bitters, manufactured in Missouri,, áre imported into Alabama by the manufacturer, consigned to his agent here for sale on commission, the box in which the bottles are inclosed is the “original package,” and not the sealed bottles; and the box having been broken, the sale of a single bottle is punishable as a. violation of the látate statute.

Prom the Circuit Court of Choctaw.

Tried before the Hon. Wm. E. Clarke.

The indictment in this case contained four counts, the first charging that the defendant “sold spirituous, vinous, or malt liquors, *with*license, and contrary to law; the second and. third each, in the same words, that he sold such liquors “without license, and contrary to law ;” and the fourth, “that he engaged in or carried on the business of a retailer” of such. *63liquors, without a license, and. contrary to law. The record does not show that any objection was interposed to the indictment. The defendant pleaded (1) not guilty, and (2) a special plea which alleged “that the sale alleged in said indictment was the sale of one or more bottles of the *Dr. Harter’s Wild Cherry*Bitters, and nothing else; that said bitters were compounded or prepared by the Dr. Harter’s Medicine Company, a firm doing business under that name and style at St. Louis, Missouri, as manufacturers and wholesale dealers in proprietary medicines; that said bitters is one of the proprietary medicines manufactured by said company, and is manufactured, used and sold as a medicine ; that said bitters were imported by said company, from the State of Missouri into the State of Alabama, in a wooden case containing original sealed bottles of said bitters, and consigned to defendant, to sell on commissions and settle with said company for the net proceeds oi all sales, after deducting commissions for selling; that nothing was to be paid by defendant unless a sale of said bitters was effected; that said wooden case was opened, and said original sealed bottles were sold separately; that at the time of the sale or sales of said bottles the seal of the cork was unbroken, and said original sealed bottle was the property of said company, the original importer; that defendant only offered for sale the original sealed bottles, and sold nothing else; and that said bottles, at the time of selling and offering for sale, were the property of said original importer, and were not and never became the property of this defendant.” The court sustained a demurrer to this plea, and this ruling is the only matter presented for revision.

Taylor *&*Carnatiian, for appellant,

cited *Zeisy v.*Hardin, 135 lr. S. 100.

IYji. L. Martin, Attorney-General, for the State,

cited *Keith v.*State, at present term ; *Tinker v.*State, 90 Ala. 638.

COLEMAN, J.

The record contains no bill of exceptions, and we presume the evidence showed that the liquors sole! were of the class averred by the indictment, and forbidden by the statute. In framing indictments for a violation of the law against retailing, and of local prohibitory laws, regard should be had to the legal distinction of the various kinds of liquors, the sale of which is prohibited, and what is necessary to constitute an indictment sufficient, to include them all.—*Tinker v.*State, 90 Ala. 647; *Brantley v.*State, ante, p. 47; *Allred v. State,*89 Ala. 112.

*64The only error assigned in the record for revision is, the judgment of the court sustaining the demurrer to defendant’s second plea. The purpose of the plea was to raise the question as to when an “original package” becomes a “broken package.” The plea states that the bottles were packed in wooden boxes, and shipped to the defendant, to be sold on commissions; that after the boxes were received, the defendant opened the boxes, took the bottles out, and sold the bottles of liquor separately. So far as the facts are presented in this plea, the precise question has been *adjudicated.—Keith*v. *State,*at present term, ante, p. 2.

The “original package” having been broken, the sale of each bottle of the prohibited liquor was a violation of the statute. The constitutionality oí such statute has been too often recognized to require consideration. See, also, *Tinker v. State,*opinion by McClellan, J., 90 Ala. 638.

Affirmed.