Coker v. State

• Decision Date: 12 February 1891
• Parties: COKER v. STATE.
• Court: Alabama Supreme Court

8 So. 874

91 Ala. 92

COKER v. STATE.

Supreme Court of Alabama

February 12, 1891

Appeal from circuit court, Coosa county; JOHN MOORE, Judge.

Felix L. Smith, for appellant.

W L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

Indictment for selling or giving vinous, spirituous, or malt liquors to one Smith, a minor. The evidence for the state consisted of the testimony of said Smith. He testified that he was under the age of 21 years; that a short time before the finding of the indictment he had applied to the defendant for some whisky; that defendant told him he had no whisky for sale and refused to sell him any; that he then borrowed from the defendant one pint of whisky, and that "a few days thereafter the wagon of defendant was going to Montgomery the market of defendant, and where he purchased his goods, and, not having any whisky on hand to return the whisky he had borrowed from the defendant as before stated, he handed the defendant some money, and requested him to buy as much whisky in Montgomery as the witness had borrowed from him, and in that way returned the whisky he, witness, had borrowed from him." The defendant testified substantially to the same effect in his own behalf, and, in addition, said that he was a practicing physician, living at Rockford, and that he only kept whisky to use in his practice. A decree of the chancery court of Coosa county relieving Smith from the disabilities of nonage, was adduced in evidence; and defendant further testified that he had known Smith for several years, and knew he was register in chancery; that he had for five years been engaged in business on his own account, and "was a well-developed, mature-looking person, and had the appearance of being twenty-one years of age." The court, "amongst other things, charged the jury that the disposition of the whisky to the witness, L. R. S. Smith, as testified to by said Smith, was a selling or giving in violation of the statute," and refused to give the general affirmative charge requested for the defendant. The action of the court in these respects is now presented for review. The charge given by the court was, we think, erroneous. The testimony of Smith certainly tended to show that the liquor was neither sold nor given to him, but that he received it under an agreement, and intended to replace with an equal quantity of other liquor of the same class. Upon this evidence the jury may have found that there was no understanding between the parties, and no intention on the part of either, that Smith should at any time pay money for the whisky, on the one hand, or on the other; that the transaction was a voluntary transfer and delivery of it to him without consideration. So finding, the further conclusion that the transaction was neither a "selling" nor "giving" of the liquor would have been matter of course, and inevitable; as also that the liquor was loaned, or, perhaps, more accurately speaking, since it was not to be returned in specie, bartered, by defendant, not without consideration, but in consideration of Smith's agreement to return a like quantity of other whisky. These terms have each a well-defined legal significance, each differing radically from both the others. A "sale" is defined to be a transfer of the absolute or general property in a thing for a price in money. Benj. Sales, § 1. "'Sale' is a word of precise legal import, both at law and in equity. It means at all times a contract between parties to give and pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold." Williamson v. Berry, 8 How. 544. "'Sales' include all agreements by which property is parted with for a valuable consideration, whether there be money payment or not, provided that the bargain be made, and the value measured in money terms. *** Contracts of sale *** do not extend to bargains of barter. Where one article or set of goods is intended to be exchanged for another, no price [ pretium] being attached, it is not a sale, for the transaction is, in the first instance, made by an exchange of goods without reference to money payment." Gunter v. Leckey, 30 Ala. 591; Lumpkin v. Wilson, 5 Heisk. 555; Woodford v. Patterson, 32 Barb. 630. "Where goods have been delivered by one party, and the other party agrees to deliver other goods of a similar quality on demand, the transaction is not a sale of the goods, but an agreement for an exchange." Mitchell v. Gile, 12 N.H. 390. "A 'sale' is an exchange of goods or property for money paid or to be paid; 'barter,' the exchange of one commodity or article of property for another; 'exchange of goods,' a commutation, transmutation, or transfer of goods for other goods, as distinguished from a 'sale,' which is a transfer of goods for money." Cooper v. State, 37 Ark. 418; Meyer v. Rousseau, 47 Ark. 460, 2 S.W. 112. The difference thus clearly defined between a sale and barter or exchange is not more essential and distinct than that between these transactions respectively and a gift. Indeed, the former each have one important element in common which is wholly lacking in the latter. Contracts both of sale and barter involve ex vi terminorum a consideration; and the absence of this element is of the very essence of a gift, which is "The voluntary transfer of a thing without consideration." 2 Schouler, Pers. Prop.§ 54; 8 Amer. & Eng. Enc. Law, 1309. A loan, of course, differs essentially from each of these three contracts or transactions, and cannot be covered by either of the terms "sale," "gift," or "barter." Except with respect to money, "to loan" implies that a thing is delivered to another for use without reward, and to be returned in specie. Booth v. Terrell, 16 Ga. 25; Nichols v. Fearson, 7 Pet. 109.

Nothing appears by section 4038 of the Code, which denounces the offense of "giving" or "selling" liquors to minors to indicate that those terms were intended to have other than their well-defined and understood legal significance, which does not embrace or include either a barter or exchange or loan. The statute is a highly penal one, and cannot be extended beyond its letter by the result necessarily more or less uncertain, of speculations into the realms of supposed legislative intent, or the...