Brown v. State

• Decision Date: 17 October 1908
• Parties: BROWN v. STATE.
• Court: Tennessee Supreme Court

114 S.W. 198

121 Tenn. 186

BROWN v. STATE.

Supreme Court of Tennessee.

October 17, 1908

Appeal from Circuit Court, Bradley County; George L. Burke, Judge.

J. K Brown was convicted of selling liquor in violation of the statute, and he appeals. Affirmed.

John K Randolph, for appellant.

Charles T. Cates, Jr., Atty. Gen., for the State.

BELL J.

The defendant was indicted in the circuit court of Bradley county on the 11th day of May, 1907, for unlawfully selling or tippling intoxicating liquors. The indictment contained two counts--the first, for selling intoxicating liquors as a beverage within four miles of a schoolhouse where school was kept; the second count, for unlawfully selling liquor without first obtaining a license to sell the same.

The defendant was tried on his plea of not guilty, and the jury returned a general verdict, finding the defendant guilty as charged in the presentment. The court, upon this conviction assessed a fine against the defendant of $50, and sentenced him to confinement in the county jail, or workhouse, for a period of 30 days.

Defendant entered a motion for a new trial, which was heard and overruled by the court, and he prayed and was granted an appeal to this court.

Only one state's witness, Cam Loyd, was examined on the trial below, and the defendant introduced no evidence at all.

Cam Loyd testified in substance that within 12 months before the finding of the indictment, in Bradley county, he borrowed a pint of whisky from the defendant, to be paid back in whisky. This was during the Carnival at Cleveland. He did not buy the whisky, but told the defendant that he wanted to borrow the whisky, and some time afterwards he paid it back in kind. Witness stated that he had, just before this on two or three different occasions, borrowed a pint of whisky from defendant in Cleveland. The whisky borrowed on these occasions was also paid back in whisky some time afterwards. The whisky borrowed and paid back each time was within four miles of the public school in Cleveland, where school was taught. Witness never bought or paid any money for any of this whisky, but always paid it back in kind. He did not return the same whisky loaned, but returned other whisky.

The case is before this court for review upon the bill of exceptions.

Defendant has assigned two grounds of error.

(1) "There is no proof to sustain the finding of the jury, or sustain their verdict, or judgment of the court."

(2) "The court erred in charging the jury that the borrowing of the whisky and the payment of the loan by a similar quantity of whisky was a violation of law and a sale of liquor for the following reasons: (a) Because such charge was an invasion of the rights and prerogative of the jury, whose duty alone it was to determine from the proof whether such a loan and repayment was a sale and violation of the law. (b) Because there is no law prohibiting a friend from borrowing any quantity of whisky from another friend, and forbidding such friend to replace the loan by returning a similar quantity of whisky so borrowed. Such a transaction is not a sale within the meaning of the statute. (c) Because the court erred when he instructed the jury that such a transaction was a subterfuge and defendant would be guilty. This was alone a question for the jury to determine whether it was a subterfuge. (d) The court's statement in reference to the loan of a horse and the return of the same animal, coupled with the following remarks comparing the loan of the commodity and the return of a different article, was misleading and prejudicial to the defendant, and, besides, was not the law."

The two counts of the indictment are based upon two separate statutes, and the punishment in each statute is different. The first count of the indictment is for selling intoxicating liquors within four miles of a schoolhouse, and is based upon section 6795 of Shannon's Code, and is as follows:

"It shall not be lawful for any person to sell or tipple any intoxicating liquor, including wine, ale and beer as a beverage, within four miles of any schoolhouse, public or private, where school is kept, whether the school be then in session or not, in this state, and any one violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine for each offense of not less than ten dollars, nor more than one hundred dollars and imprisonment for a period of not more than six months, at the discretion of the court."

The count for selling whisky without a license is based upon section 1, c. 161, p. 309, of the Acts of 1899, as follows: "Be it enacted by the General Assembly of the state of Tennessee, 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, and upon conviction shall be punished by a fine of not less than fifty dollars, nor more than two hundred dollars, and imprisonment in the county jail or workhouse for a period of six months, for each and every offense," and which was intended by the Legislature to take the place of section 6780 of Shannon's Code, as follows:

"It is a misdemeanor to sell spirituous or vinous liquors without first obtaining a license therefor."

Section 6783 of Shannon's Code is as follows:

"The provisions of this article are to be construed liberally so as to prevent evasion and subterfuges and to effectuate the object had in view."

The latter section, it will be seen, refers to the section above quoted, making it a misdemeanor to sell spirituous or vinous liquors without a license. The punishment fixed by statute (Acts 1899, p. 309, c. 161) for selling liquors without license is a fine of fifty dollars and not less than six months in the county jail or workhouse, and the judge trying the case has no discretion or authority to change the terms of punishment.

It will be seen the court trying the cause fixed the punishment under the statute for selling liquors within four miles of a schoolhouse, although the jury returned a general verdict.

The question to be determined by this court is: Was this exchange of whisky for whisky, or loaning whisky by the defendant to be returned in kind, a violation of both, or one, or either, of these statute laws? Construing the whisky laws liberally, "so as to prevent evasion and subterfuges," as we are required to do under the section quoted above, were these transactions between the defendant and the witness, Cam Loyd, a sale?

This direct question seems not to have been before the Supreme Court of Tennessee before, or at least we have been unable to find any Tennessee...