Summary
In Scott, the defendant was convicted of adultery when the only evidence additional to accomplice testimony demonstrated merely an opportunity for the defendant to have committed the adulterous act.
Summary of this case from State v. RileyOpinion
(February Term, 1895).
Indictment for Selling Liquor on Sunday — Intoxicating Liquors — Question for Jury.
1. Where a liquor, by common knowledge or observation, is intoxicating, the court may so declare, but if it is doubtful whether it is intoxicating or not, then it is a question of fact for the jury; hence,
2. Where, in the trial of an indictment for selling spirituous liquors on Sunday, without prescription of a physician and not for medical purposes (section 1117 of The Code), the evidence was that the prosecuting witness drank four bottles of brandy peaches sold by the defendant and became drunk thereby, it was for the jury to determine whether the liquor was spirituous and intoxicating.
INDICTMENT for unlawfully selling spirituous liquors to one Archie Mathis, on Sunday, without prescription, etc., tried before Hoke, J., and a jury, at February Term, 1895, of DUPLIN.
The Attorney-General for the State.
A. D. Ward for defendant.
The defendant was indicted for unlawfully selling spirituous liquors on Sunday without prescription, etc.
The Code, sec. 1117, enacts: "If any person shall sell spirituous or malt or other intoxicating liquors on Sunday except on the prescription of a physician, and then only for medical purposes, the person so offending shall be guilty of a misdemeanor."
These are direct and unambiguous words. Two witnesses for the State testified that they drank of bottles of brandy peaches sold by the defendant on Sunday, and were made drunk thereby. The defendant testified in his own behalf that he sold brandy peaches without prescription, etc.; that he kept them in stock and sold them as groceries, as food; that the liquid was syrup and not brandy. His Honor charged the jury that if they believed the evidence the defendant had sold the articles on Sunday without prescription, etc., and the question of the defendant's guilt or innocence would depend on whether the articles sold were spirituous and intoxicating liquors, as described in the State's evidence; that if they were satisfied beyond a reasonable doubt that the liquor in which the peaches were preserved in the bottles sold was brandy or other liquor, and the same contained alcohol in sufficient quantities to make one drunk, when freely used, they would render a verdict of guilty, otherwise not guilty.
The whole evidence being before the jury, under the above charge, they necessarily had to determine whether the liquid in the bottles was brandy or syrup, as claimed by the parties, without other instructions.
His Honor properly gave the defendant the benefit of going to the jury on the question of the quality or character of the liquid drunk from the bottles, although this Court has held that when the liquid, by common knowledge and observation, is intoxicating, the court may so declare; but if it is doubtful whether or not it be so, then the question of fact is raised for the jury. S. v. Giersch, 98 N.C. 720, and several preceding decisions. (1016)
Affirmed.
Cited: S. v. Burton, 138 N.C. 578; S. v. Parker, 139 N.C. 588; S. v. Piner, 141 N.C. 763.