Robinson v. State

• Decision Date: 23 June 1894
• Parties: ROBINSON v. STATE
• Court: Arkansas Supreme Court

27 S.W. 233

59 Ark. 341

ROBINSON v. STATE

Supreme Court of Arkansas

June 23, 1894

Appeal from Lee Circuit Court, GRANT GREEN, JR., Judge.

Judgment reversed and cause remanded.

James P. Brown for appellant.

The question in this case is settled by our decisions. 47 Ark 555; 37 id. 418; 18 U. S. (5 Wh.) 96.

Jas. P Clarke, Attorney General, and Chas. T. Coleman for appellee.

Cite 65 Ind. 409; 30 Ala. 591; 8 So. 877.

OPINION

RIDDICK, J.

In this case the appellant was arrested on a warrant, issued by a justice of the peace of Lee county, charging him with an unlawful sale of liquor. He was tried before the justice of the peace, and convicted, and took an appeal to the circuit court. On the trial in that court, there was proof tending to show that the appellant loaned the witness for the State a bottle of whiskey, under an agreement with him that he would return it in kind at some future day. The defendant, by his attorney, requested the court to instruct, in effect, that a delivery of whiskey under an agreement, made in good faith, that it should be replaced by the return of an equal quantity of other whiskey would not be a "sale", within the meaning of a statute forbidding the sale of liquors. The court refused to give such an instruction, and, in effect, charged the jury that such a transaction would come within the meaning of the word "sale," used in the statute, and that proof of an exchange of liquor for other liquor would sustain a conviction on a charge of selling liquor. The defendant excepted to this ruling of the court, and the question for us to determine is whether it was correct or not.

There is not wanting eminent authority to uphold the ruling of the learned judge of the circuit court. In the case of Commonwealth v. Abrams, 150 Mass. 393, 23 N.E. 53, the Supreme Court of Massachusetts held that a delivery of intoxicating liquors upon an agreement, express or implied, that other liquor will be returned in payment for it is a "sale," within the meaning of the statute of that State relating to the sale of intoxicating liquors. The correctness of this ruling has been doubted, and the decided weight of authority seems to be against it. Mr. Black, in his work on Intoxicating Liquors, speaking of this and other cases from the same court, says: "We think these decisions cannot be sustained on principle. 'Sale,' we are told, 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 to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing sold.'" Black on Intoxicating Liquors, sec. 403; Williamson v. Berry, 49 U.S. 495, 8 HOW 495, 12 L.Ed. 1170. He then proceeds to argue that where the legislature has used a word of precise legal import like the word "sale," the courts are not justified in adding to the law as enacted by making such word include barters, exchanges and the like. Black on Intoxicating Liquors, sec. 403.

Having regard to the rule that criminal statutes are to be strictly construed, this court has uniformly held that in criminal statutes, the word "sale" does not include an exchange. Cooper v. State, 37 Ark. 412; Gillam v. State, 47 Ark. 555, 2 S.W. 185. In the last mentioned case, Chief Justice Cockrill, who delivered the opinion of the court, held that exchanging liquor with a minor is not within the terms of the statute prohibiting the sale of liquors to minors, and...