Lynch v. State

Selling IÁquor Without License. Intoxicating Liquors; Licenses; Issuance to Firm; Rights of Partner. — The defendant having purchased his partner’s interest in the firm, was authorized to carry on the same business under the license granted to him and his partner to retail liquors.

Appeal from Bessemer Gity Court. Heard before Hon. William Jackson. ..The defendant was convicted of retailing without a license. Trial was had on the following agreed statements of facts: That one D. B. Wilkins and Will Lynch, the defendant in the case, paid for and procured a license, both state and county, to carry on business as retail liquor dealers in the city of Bessemer, Jefferson county, Ala. That the said D. B. Wilkins and Will Lynch were understood to be, and were, partners in said business, and that they did business under the firm name of Wilkins & Lynch. That the license that was issued to them had their names written in it as follows: “D. B. 'Wilkins and Will Lynch.” That they commenced to do business on the date that the license was issued for the balance of the year 1905. That the said firm did business as the firm for some time, when, the said D. B. Wilkins sold and transferred his interest in and to said business to W. R. McVay, and he (Wilkins) went out of and left the business. That the said McVay never took charge of nor attempted to do business under said license, but at once; after the transfer of Wilkins’ interest to him transferred the same to Will Lynch, this defendant. That this defendant, Will Lynch, continued to carry on and run said business without other license than that issued to I). B. Wilkins and Will L3mc.l1 as aforesaid. That this prosecution is brought, against said Lynch for carrying on said retail liquor business' aforesaid after Wilkins had retired from the firm as aforesaid. It being admitted that Wilkins and Lynch had a valid license, it is prima facie presumed that the law has been complied with in its procurement. — Russell v. .State, 77 Ala. 89. Each member of a firm must qualify as required by law before license will issue, so then each member is qualified and authorized to retail in the same place. — §§ ¿520-24, code 1896 and citations; Lcmy v. State, 97 Ala. 32; Slum: v. State, 56 Ind. 188; Love joy v. Commonwealth, 13 Ky. Law Rep. 967. The word, person or party means firm as well.' — 22 A. & E. Ency. of Law, pp. 233-738. A license to a firm will protect each member thereof. — Shiff v. State, 84 Ala. 454. Where a retail license has been issued to a firm and one of the members buys out the other, the license protects the remaining partner in selling at the same place, and during the time for which it was issued. — Commonwealth v. James, 98 Ky. 30; Hill v. Thixton, 94 Ky. 96; State v. Gearhardt, 3 Jones L. 178; U. S. v. Gladden, 99 U. S. 225; James v. Commonwealth, 16 Ky. Law, 445; U. S. v. Dams, 37 Fed. 468; St. Charles v. Hachinan, 133 Mo. 645; Hichley v. Insurance (7o.,140 Mass. 38. The court correctly gave the affirmative charge for the State. A license to one partner conferred no authority on the partner or a partnership. — Long v. State, 27 Ala. 32; Stallimgs v. Lee, 123 Ala. 464. The acts of Lynch can, in no sense, be the acts of the partnership', and the license to the partnership was a personal permit or privilege to be exercised in the manner and by the persons to whom it was granted. — Potcell v. State, 69 Ala. 10; Wharton v. King, .69 Ala. 365. Charge A, requested by defendant was properly' refused. — Totmsencl v. State, 137 Ala. 91. As the affirmative charge was properly given for the state, the refusal of charges to the defendant was Avithout error. — Parrish v. Stateft, 139 Ala. 16.