#### Johnson *v.*The State.

*Violating Prohibition Law.*

(Decided April 20, 1911.

55 South. 226.)

1. *Judgment; Sufficiency; Guilt.-*— •'Where a judgment entry recited that on a verdict finding- the defendant guilty and assessing a fine of fifty dollars the court ordered and adjudged that the State for the use of G County have and recover of the defendant the sum of fifty dollars, the fine so assessed by the jury, together with .all the costs for which execution may issue, while, irregular for a failure to formally adjudge the defendant guilty of the offense for which he was charged, was nevertheless not fatally defective since by necessary implication it was rested upon a concurrent finding of guilt.

2. *Appeal and Error; Payment of Fine; Effect.*— Where an accused is convicted of selling liquor contrary to law and fined fifty .dollars and costs from which judgment he appeals, the fact that he had paid the fine and costs did not constitute a waiver of h'is appeal (sections 6244 and 6250 Code 1907.

3. *Intoxicating Liquors; Wrongful Sale; Barter.*— Construing together the provision of Acts 1907 (ss) page 71, and section 7363 Code 1907, it is held that under an indictment charging a sale of liquor contrary to law a conviction may be had on proof of a barter or exchange of liquor for other property.

4. *Saone; Aiding and Abetting.*— Under the provisions of Acts 1907, page 71 and section 7363 Code 1907, one who procures prohibited liquor for another, who receives the same, necessarily also aids and abets the sale or unlawful disposition thereof by the dispenser, and one so doing is guilty of aiding and abetting, although the purchaser or receiver may not be punishable therefor.

5. *Same; Evidence.*— Where in procuring the liquor for R the defendant was acting in some capacity other than that of mere assistant, friend, or-agent, of R, and was guilty .of either selling the *425liquor himself, or aiding or procuring its barter by the person from whom he procured it regardless of the circumstances surrounding its final delivery to R. evidence that at the time the offense was committed the defendant was working for R under a criminal contract was not admissible, in. the absence of any claim of duress.

Appeal from Geneva County Court.

Heard before Hon. E. Foster Ellsberry.

Noah Johnson was convicted of selling spirituous, vinous or malt liquors contrary to law, and he appeals.

Affirmed.

W. O. Mtjlkey, for appellant.

The facts here shown do not constitute a *sale.*— Coker *v. State,*91 Ala. 92. The court should have admitted the fact that the defendant was working for the purchaser of the whiskey under a criminal contract.

Robert C. Brigkell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

SOMERVILLE, J.

—

The defendant was indicted and convicted for selling spirituous, vinous, or malt liquors contrary to law.

The record shows a minute entry, reciting that upon •the verdict of the jury finding the defendant guilty, and assessing a fine of |50, the court “ordered and adjudged that the state of Alabama, for the use of Geneva county, have and recover of the defendant the sum of fifty dollars, the fine assessed by the jury, together with all the costs in this behalf expended, for which execution may issue.” .Immediately following this is the recital “Comes the defendant in open court and pays the fine and costs to the clerk, and is discharged.”

1. This court has often criticised judgments of conviction in criminal cases for omitting to formally adjudicate the fact of the defendant’s guilt. Nevertheless the omission has been sanctioned, where the judgment

*426entry contains a sentence to hard labor, or confinement in the penitentiary, as resting by necessary implication upon a concurrent adjudication of *guilt.*— X*5*12; *Willdnson v. State,*106 Ala. 23, 17 South. 458. The judgment entry in the present case, while in form only for the recovery of the amount of the fine and costs assessed, is in effect a sentence upon the defendant to pay that amount. And, within the principle of the above cases, we think the entry shows a valid judgment.

2. Upon the theory that defendant’s payment of the fine and costs adjudged against him, followed by an order of discharge from custody, was a waiver of the right of appeal, or a release of errors, there is a motion to dismiss the appeal. The precise question thus presented has not, it seems, been heretofore considered by this court, though authorities from elsewhere are not wanting.

In 12 Cyc. pp. 807, 808, the general rule, as deduced by the editor.from the cases cited, is thus stated: “As the appellate court will not determine a purely speculative question, it will not consider an appeal from a sentence which has been acquiesced in. Hence the accused, by voluntarily paying the fine imposed on him, waives his right to appeal, or to have a review by certiorari.”

With one exception, the opinions in the cases cited in support of the rule quoted, taken from some half dozen jurisdictions, offer no discussion of the question, and furnish no reason for the conclusion announced, other than that the payment determined the issues, or ended the case.

The exception noted in *State v. Westfall,*37 Iowa, 575, from which we quote: “Courts, aside from the exceptional case of an appeal taken under the statute by *427the state, do not determine mere abstract questions. If the judgment in this case had been one of imprisonment, and the defendants had served out the period of imprisonment, it seems clear that they could not afterward prosecute an appeal from the judgment, for the. reason that they could derive no benefit from a reversal. By voluntarily paying a fine imposed upon them, they stand in the same relation to the law as they would have done if .they had served their period of imprisonment. All that can be said for them is that they have paid money in mistake of their legal rights. If the money need not have been paid, they have clearly made a mistake of law. If, upon this appeal, the judgment should be reversed, they could not recover it, arid hence they could derive no benefit from the appeal.”

The case of *State v. Burthe,*39 La. Ann. 328, 1 South. 652, was based upon a rule of practice which denied the right of appeal to a party who had *acquiesced*in the judgment by executing it *voluntarily.*But where the payment was not *voluntary,*it had no such effect.' —*State v. Brown,*29 La. Ann. 862.

In *State v. Conkling,*54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270 (not cited in the Cyc. note), where the defendant had paid the fine under protest, declaring he reserved the right of appeal, the appeal was dismissed, the court saying: “It appears that the sentence of the law has been executed, and nothing is left for further controversy. By his own act Conkling satisfied and discharged the judgment entered against him. His protest and attempt to reserve the right of appeal are unavailing. The statute does not provide for nor contemplate an appeal from a discharged judgment. Neither payment nor protest was necessary to protect his rights. Under the statute the judgment of conviction which was entered against him would have been stayed by the *428mere taking of an appeal, without any order of the court or the giving of a bond.”

In this state “any person convicted of a criminal offense * * * may appeal from the judgment of conviction to the Supreme Court.” — Code, § 6244. In misdemeanor cases, upon notice to the trial court of intended appeal, although the judgment of conviction must be entered, execution thereof must be suspended pending the appeal. — Code, § 6250. During such time the defendant may give bail and be temporarily discharged, but failing to do this he must be committed to jail.

It thus appears that a defendant who has been convicted of a misdemeanor must, although he appeals, either give the bail prescribed by the statute or satisfy the judgment (if it can be satisfied), or be committed to jail. We find nothing in our statutes regulating appeals which might indicate that, where the punishment imposed is the payment of money, its payment by the defendant, before or pending appeal, is a waiver or relinquishment of that right. We are therefore free to adopt that rule which is most consonant with justice, and most in accord with the general principles of the law.

Although there are a few cases to the- contrary, the rule is nearly universal in civil cases that mere payment of a judgment, or obedience to the mandate of the court, works no waiver of the right of appeal, and so this court has *held.*— Duncan A *Wares,*5 Stew. & P. 119, 24 Am. Dec. 772; *Ex parte Walter,*89 Ala. 237, 7 South. 400, 18 Am. St. Rep. 103; *Nixon v. Bolling,*145 Ala. 277, 40 South. 210. As lucidly shown in *Mayor, etc., ads. Riker,*38 N. J. Law, 225, 20 Am. Rep. 386, the rights of a party so paying or performing are quite different from the ordinary case of payment under a mis*429take of law. In a note to *State v. Conkling, supra,*Mr. Freeman Iras collected a large number of cases, including both civil and criminal, and he there takes occasion to criticise the doctrine of *State v. Westfall,*37 Iowa, 575, and several other cases in line with it, as being unsound and erroneous in principle.

The crux of the discussion seems to lie in the variant conceptions of what is to be deemed a *voluntary*payment or acquiescence. The approved rule in civil cases is well stated in *Richeson v. Ryan,*14 Ill. 74, 56 Am. Dec. 493: “If the judgment had been collected by execution, there would not be a doubt of the right of Richeson to prosecute the writ of error. A payment under such circumstances would be compulsory, and would not preclude him from afterwards reversing the judgment, if erroneous, and then maintaining an action to recover back the amount paid. The payment in question must equally be considered as made under legal compulsion. The judgment fixed the liability of Richeson, and he could only avoid payment by procuring its reversal. He was not bound to wait until payment was demanded by the sheriff. He was at liberty to pay off the judgment at once, and thereby prevent the accumulation of costs. By so doing he did not waive his right to remove the record to this court, for the purpose of having the validity of the proceedings tested and determined.”

And to the same extent the Iowa court itself has said: “Suppose a judgment is. rendered against a party, and he cannot give security to supersede its enforcement while he prosecutes an appeal, and an execution is therefore issued, and his property is about to be sold under it — his homestead, it may be. Now, .can it be claimed that,, if he shall- pay off the judgment, he is thereby deprived- of. an appeal?' Surely this cannot- be the *law.”*—Grim *v. Semple,*39 Iowa, 570-572.

*430The decisions of this court in cases where a party has paid illegal taxes are not opposed to this view: the theory of those cases being that by *anticipating*the *judgment*of the law upon his liability, and in the absence of demand or threat by the collector, he *tcaives*any defense he may have, and hence may be said to have paid *voluntarily.*— Cahaba *v. Burnett,*34 Ala. 400; *Raisler v. Athens,*66 Ala. 194, 198; *Mayor, etc., v. Riker,*38 N. J. Law, 225, 20 Am. Rep. 386.

We can discover no valid reason for a different result in criminal cases. The assumption in *State v. Westfall, supra,*and other cases, that a convicted defendant, who is ordered to be committed to jail, unless the fine and costs be paid or secured, and, under that threat from a *valid judgment,*pays the penalty assessed, does so *voltmtarily,*is but a gnim form of jesting, and utterly at war with the generally accepted notion of the meaning of that term.

In. *State v. Conkling, supra,*the payment was made under protest, with notice of appeal, and the reason for the conclusion seems to be that the payment was none the less voluntary, because unnecessary, since “the judgment of conviction would have been stayed by the mere taking of an appeal.” We apprehend that the court was in error in asserting that the *judgment of conviction*would have been stayed, and that appeal under their statute, as under ours, suspends, not the judgment, but only the *execution*of the judgment, and that one important consequence of the judgment, viz., incarceration in jail in default of bail, was not suspended by merely taking an appeal. If we are correct in this, then the reasoning and conclusion of the Kansas court are manifestly wrong.

Nor do we conceive that the supposed inability of the defendant to recover, after reversal of the judgment, the *431sum paid by him for its satisfaction, as is predicated in some of the cases under criticism, is a matter of vital importance. Whether or not the defendant in this case might, by order of restitution, or by any other legal remedy, recover the money he has paid is a question which is not before us, and which we need not now consider. The right to- appeal and reverse an erroneous judgment in a criminal case cannot, we are satisfied, be grounded solely on that consideration, and we concur in the opinion of Cbwen, J., in *Barthelemy v. People,*2 Hill (N. Y.) 248, 255, where he says, in discussing this very question, in relation to a conviction for criminal libel: “But the payment or satisfaction of an erroneous judgment against a party can never be allowed as a bar to a writ of error, even in a case where we must see that no restitution could follow the reversal as a legal consequence, and no costs be recovered. An erroneous judgment against him is an injury per se, from which the law will intend he is or will be damnified by its continuing against him unreversed. * * * A judgment on the merits is conclusive between the parties, and, if not by direct, it may be followed by remote, consequences actually injurious.” And this view has been quoted and approved by the Supreme Court of Illinois. *—Page v. People,*90 Ill. 418, 425. The motion to dismiss the appeal must therefore be overruled.

Under special session act of November 23, 1907 (Acts Sp. Sess. 1907, p. 71), it is unlawful for any person to sell, barter, exchange, give away, or otherwise dispose of, spirituous liquors. And under section 7363, Code 1907, it is made a crime to aid, abet, counsel, or procure any unlawful sale, purchase, or gift, or other unlawful disposition, of such liquors, with the further provision that a conviction for a violation of this section may be had under an indictment for *selling*such liquors con*432trary to law. By a recent decision of this court, three of the judges dissenting, the latter provision has been literally construed, to the effect that under an indictment charging only *a sale,*a conviction may be had upon proof of *any one*of the several related offenses specified in the *statute.*— Darrington *v. State,*162 Ala. 60, 50 South. 396. This ruling has since been followed without dissent *(Rayfield v. State,*167 Ala. 94, 52 South. 833), and must be regarded as settled law.

Upon the testimony adduced on the trial, the court, being requested in writing, instructed the jury to find the defendant guilty as charged, if they believed the evidence beyond a reasonable doubt.

Only one witness — one Rushing — was examined for the state, and the defendant alone testified for himself. The bill of exceptions sets out all the evidence, from which it appears that the testimony of Rushing, if true, shows a purchase of the whisky by him directly from the defendant for an agreed price; while the defendant’s testimony, if true, shows that defendant, at the instigation of said Rushing, procured the Avhisky from a negro, with the promise to the negro that Rushing would pay him for it by hauling him a load of wood; the whisky thus procured being carried by defendant to his home, and by him afterwards delivered to Rushing. This latter transaction, it is hardly necessary to say, constituted a barter or exchange, as these terms are used in the statute referred to.

So, if the defendant did not sell the whisky to Rushing’, he nevertheless, on his own showing, aided, abetted, or procured a barter or exchange of whisky for wood; and a barter or exchange being prohibited, as well as a sale, the transaction obviously falls within the phrase “or other unlawful disposition,” as found in section 7363. It follows that on any phase of the evidence *433the defendant was gnilty of a violation of section 7363, and the instruction to convict was properly given.

4. It is insisted by appellant’s counsel that, inasmuch as the purchaser or receiver of liquor unlawfully sold or disposed of is not made punishable for his share in the transaction, the Legislature cannot make punishable the act of a third person in assisting an innocent principal; in other words, that an assistant may not be constitutionally punished for sharing in an act which is innocent as to the actor in chief. In the writer’s opinion, the assumption of the principal’s immunity is incorrect; but the point is not before us, and cannot be now determined. Suffice it to say that one who procures prohibited liquors for him who receives it necessarily also aids and abets the sale or unlawful disposition thereof by the dispenser. Nor do we know of any constitutional principle inhibitory of the legislative policy of punishing those who assist without condemning also those who are the recipients of that assistance. It is purely a question of policy.

5. While defendant was testifying for himself, he offered to state that, at the time of the offense charged, he was working for the witness Rushing “under a criminal contract,” which testimony, on objection by the solicitor, was excluded. Except upon the theory of duress — and that is expressly disclaimed — we can discover no relevancy in the fact of defendant’s compulsory servitude under such a contract, since it could in no degree serve to qualify his guilt upon either phase of the testimony. We are not inadvertent to counsel’s argument that it may tend to show that, in *delivering*the whisky to Rushing, defendant was acting in some capacity other than that of assisting friend or agent of the purchaser. As we have shown above, he is guilty of either selling it himself, or of aiding or procuring its *434barter, regardless of the circumstances surrounding its final delivery to Rushing.

No error appearing, the judgment must be affirmed.

Affirmed.

Simpson, Anderson, and Sayre, JJ., concur.