State v. Powell

Citation53 S.E. 515,141 N.C. 780
PartiesSTATE v. POWELL.
Decision Date03 April 1906
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Robeson County; Justice, Judge.

Sylvester Powell was convicted of selling intoxicating liquor, and appeals. Reversed.

Though the statute declaring sales of intoxicating liquors an offense does not provide that the sale must be "willfully and unlawfully" made, it is in fact qualified by such words, so that the defense of ignorance of the fact, the ignorance not being due to negligence, is available; and for such purpose defendant may show that the liquor he sold was bought by him as a "soft drink" under the name of "phosphate" with a guaranty of the manufacturer that it was nonalcoholic and nonintoxicating, the manufacturer's agent furnishing what purported to be a statement from the Internal Revenue Commissioner that it was nontaxable; that he bought and sold it, believing that it contained no alcohol; and that he sold it only the day after he received it, when hearing that it was charged to be intoxicating he immediately closed it up and returned it to the manufacturer.

Defendant was indicted for retailing intoxicating and spirituous liquor contrary to the statute, etc. The state introduced Jim Ezzell, who testified that on Tuesday, February 6, 1906, at the store of the defendant, in Lumberton, he purchased at two or three times, a certain drink called ""phosphate," or something of the kind; that it would take about a quart of this drink to intoxicate; that he paid 25 cents a quart for the liquid so purchased by him. On cross-examination he furter testifies that he returned to defendant's Wednesday morning and offered to purchase more, but defendant declined to sell him any, telling him that he had understood that it was alleged that the "phosphate" drink was intoxicating, and if so, he would sell no more of it, but would return it immediately to the maker, and he asked defendant two or three times on Wednesday morning to let him have more, but he refused. There was no evidence that defendant had ever sold any of this liquid except on the Tuesday named. The state rested its case, and the defendant offered himself and other witnesses to show that the drink so called by him was purchased as a "soft drink" under a guaranty from the manufacturer that it was nonalcoholic and nonintoxicating, and that at the time of the purchase the agent of the manufacturer furnished him with what purported to be a statement from the Commissioner of Internal Revenue, that it was nontaxable that he purchased it in the full belief that it contained no alcohol, and sold it so believing; that he received from the manufacturer the only purchase made by him on Monday February 5th, and the only sales made by him were on Tuesday February 6th; and, having heard Tuesday night that it was charged that this ""phosphate," the name being given to it by the manufacturer, Burmanco, was intoxicating, he immediately closed it up and shipped it back to the manufacturer, having had it in his possession only one day, and refusing to make any sales after he was informed of the charge that it was intoxicating. His honor declined to admit this evidence, and the defendant excepted. Under the charge of his honor the jury returned a verdict of guilty. From a judgment upon the verdict, the defendant appealed.

McLean, McLean & McCormick, for appellant.

The Attorney General, for the State.

CONNOR J. (after stating the case).

It will be observed that the bill of indictment charges the sale of the intoxicating liquor to have been made "willfully and unlawfully." This language is not to be found in the statute, but this court has several times held that these words, or words of equivalent import, should be used in indictments for violating statutes prohibiting, or making criminal the doing or omitting to do the acts described. In State v. Simpson, 73 N.C. 269, the indictment was drawn under a statute declaring it a misdemeanor to kill or abuse live stock in any inclosure not surrounded by a lawful fence. Neither the words "with intent" or "willfully, or unlawfully" nor any words qualifying or giving character to the mental attitude of the party are to be found in the statute. Because the words "unlawfully and willfully" were not in the indictment, judgment was arrested. Pearson, C.J., said, "The statute by its necessary construction must be qualified by the addition of the words "willfully and unlawfully." Common sense forbids the idea that it was the intention of the General Assembly to send to jail every person who by accident kills or injures stock in an inclosure not surrounded by a lawful fence. In State v. Parker, 81 N.C. 548, it was held that an indictment under the same statute, charging the act to have been "unlawfully" done was defective and judgment was arrested because of the failure to charge that it was "willfully" done. These rulings do not conflict with those which hold that when a person intentionally does the act forbidden by the statute, the criminal intent attaches to the act as in State v. King, 86 N.C. 603, and many other cases in our reports. The distinction is said to be, if the criminal character of the act is made to depend upon the intent, as in disposing of mortgaged property with intent to defraud the mortgagee, the intent must be charged and proven; whereas, if the act is made criminal, the intent need not be proven or charged, as in indictments for removing crops. But, as we have seen, it must be charged that the act was willfully -- that is, intentionally -- done; the criminality attaching. See discussion of Smith, C.J., in King's Case, supra. The proposed testimony was not offered to show that the defendant knowingly sold intoxicating liquor but had no criminal intent; for such purpose it was clearly incompetent. The purpose of the testimony was to show that he did not knowingly sell intoxicating liquor; that in doing so he was acting under a mistake of fact.

The principle is well illustrated in State v. Nash, 88 N.C. 618, in which the defendant hearing unusual noises at night near his dwelling, ringing of bells, blowing of horns, discharge of pistols and guns, etc., his child who was sleeping near a window in the house through which the noise was heard and the flashes of the discharge of the guns seen, ran to defendant with blood on her face, whereupon he took his gun, went to the door and fired into the crowd, wounding several. It turned out that the crowd consisted of boys who were, in that peculiar manner, serenading defendant. Ashe, J., said: "Did the defendant have reasonable ground to believe that his daughter had been shot and the assault upon him and his house was continuing? If he had, then he ought to have been acquitted." The decision is based upon the ruling in Selfridge's Case. It is said that the defendant did the act prohibited by the statute, sold an article containing intoxicating liquor, and that it is immaterial with what intent he did it. So Nash did an act prohibited by law. He fired a pistol into a crowd who were engaged in harmless amusement. Selfridge fired upon and killed a man approaching him with an empty pistol pointed at him. In both cases the defense was sustained upon the well-settled principle that they acted under a mistake of fact. In neither case were the defendants in any danger from the conduct of the persons assaulted, but the jury were instructed to acquit if in their opinion they acted under a reasonable apprehension and belief that the fact was as they supposed. The principle is essential in the administration of the criminal law. Without it the law would become an engine of wrong and oppression. In almost every case involving the plea of self-defense it is announced from the bench and applied by juries. Mr. Bishop states the law so clearly and so strongly vindicates the principle that we prefer to adopt his language. "Of course to make such defense available, the defendant must have acted in good faith and with due care and caution. And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is done is such as would be proper and just were the fact what it is thus honestly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of fact is as universal an excuse for what would otherwise be a criminal act as insanity. And it is a universal rule in the interpretation of criminal statutes that when an expression is general in terms, it must be taken with such limitations and exceptions as the principles of the unwritten law have established; to justify a different interpretation the statute must be specific and name the particular thing in respect of which there is to be a departure from this fundamental rule. Thus a statute forbidding or making penal a thing in general terms does not justify the punishing an insane person who commits the act or a child under seven years of age or a sane person of full years who does the forbidden thing under a compulsion which he cannot resist; or, as we have just seen, who does it from a pure mind under a mistake of facts which he cannot overcome. These exceptions are grafted upon the statute by the common law; and, if the courts did not recognize this effect of the common law to modify the general terms, courts and statutes would alike be abated; and they ought to be as public nuisances, by the uprising of the popular instinct." We find no direct authority in our Reports.

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