Haynes v. State

• Decision Date: 07 September 1907
• Citation: 105 S.W. 251
• Parties: HAYNES v. STATE.
• Court: Tennessee Supreme Court

Page 251

105 S.W. 251

HAYNES v. STATE.

Supreme Court of Tennessee.

September 7, 1907.

Error to Circuit Court, Lauderdale County; S. J. Everett, Judge.

W. G. Haynes was convicted of selling intoxicating liquors without a license, and he brings error. Affirmed.

J. W. Kirkpatrick & Son, for plaintiff in error. Attorney General Cates, for the State.

HENDERSON, J.

The plaintiff in error was indicted in the circuit court of Lauderdale county in one count for selling intoxicating liquors without license, and in another count for selling same within four miles of a schoolhouse. Upon trial before the jury, there was a general verdict of guilty, and the court fixed the punishment under the first count at a fine of $50 and confinement in the county workhouse for six months. Motion for new trial having been overruled, there is appeal in error to this court.

The plaintiff in error was engaged in the grocery business at Ripley. In connection with this, he sold cider, phosphate, and soda pop. The claim of the state is that the cider would intoxicate. Upon motion of plaintiff in in error, the Attorney General in the court below elected to ask conviction upon the sale of cider claimed to have been made to one Luther Vaughan.

The first error assigned is that the evidence preponderates against the verdict. We have carefully considered the evidence in the case, and this assignment is overruled. While there is some conflict in the testimony, we think the verdict of the jury is sustained.

The second error assigned is to the exclusion by the trial judge of the testimony of Ode Smith, a salesman for the Dyersburg Wholesale Company, who sold the cider to plaintiff in error. The following is the excluded testimony: "When I sold this cider to W. G. Haynes, I represented and guaranteed that it contained no alcohol and would not intoxicate." He further testified, which was excluded, that he sold the cider to the general trade; had eight or ten customers in Lauderdale county who buy the cider; that he never knew or heard of any complaint by any customers handling this cider, except in this case.

The following is our legislation on the subject: Shannon's Code, § 991: "The right to sell spirituous, vinous or fermented liquors is a taxable privilege in the sense of the twenty-eighth section of the second article of the Constitution." Shannon's Code, § 6795: "It shall not be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale and beer, as a beverage, within four miles of any schoolhouse," etc. Acts 1899, p. 309, c. 161, § 1: "That any person or persons selling, or aiding in selling in any way whatever, intoxicating liquors, without a license required by law, shall be guilty of a misdemeanor," etc.

The court charged the jury on the subject as follows: "What is meant by intoxicating liquors is anything that will intoxicate, and it does not make any difference by what name it is called. If Mr. Haynes sold to Luther Vaughan the stuff of any kind that intoxicated him or that was intoxicating, you should convict."

Defendant disclaims knowledge of the intoxicating character of the cider. His counsel urges that it is a fundamental principle of criminal law that there must be a criminal intent of the mind, coupled with the act, in order to constitute a crime. He cites the case of Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614, decided by the Supreme Court of Ohio. In that case the defendant had been selling bitters, and was indicted for selling intoxicating liquors. The court says: "In such case the maxim of the criminal law, `Ignorantia facti excusat,' applies to this case. The excusing principle of this maxim applies with great force where the business is recognized as lawful, and a transaction in its prosecution only becomes criminal when it is carried on with a purpose to violate the law. To give this maxim practical effect in a proper case, it is but an assertion of natural justice, for the reason that to render an act criminal the intention with which it is done must be so. The will must concur with the act. To make a transaction criminal, there must be both will and act entering into the transaction."

The opinion in that case was by a divided court; and, even had it been otherwise, it is not sound in principle, and is contrary to the weight of authority in this and other states. It is the sale of intoxicating liquors without license which the statute prohibits, and it is unlawful to sell intoxicating liquor of any character without license. This being so, the seller must find out at his peril whether the liquor he proposes to sell is intoxicating or not. Guilty knowledge is not by the statute made an ingredient of the offense.

Quite a number of authorities might be cited in support of this. In the case of State v. Hartfiel, 24 Wis. 60, it is held that the sale of intoxicating liquors to a minor is an offense under the statute, though the vendor did not know that the purchaser was a minor. The court in that...