State v. Bailey
| Decision Date | 09 December 1914 |
| Docket Number | 465. |
| Citation | 83 S.E. 711,168 N.C. 168 |
| Parties | STATE v. BAILEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Harding, Judge.
J. W Bailey was convicted of illegally selling intoxicating liquor, and he appeals. Affirmed.
The defendant was indicted in the superior court for selling intoxicating liquor to Pink Thorne. The defense is that he did not sell the liquor to Thorne, but that the transaction in which liquor was delivered to Thorne at his home was conducted with him by his wife, who is now dead. The state introduced evidence to the effect that Pink Thorne had received liquor from the defendant, and paid him $1 for it. The witness Pink Thorne testified: "I have forgotten how much money I gave him; possibly something like $1." He also stated that he and defendant ordered some liquor contributing the money together, and he got a gallon and defendant a gallon, and he thought it came from Richmond Va., but did not know whether it did or not. There was also evidence from which the jury might have inferred that the liquor was ordered from Richmond, Va., by defendant, shipped by express to him upon a prior agreement between Pink Thorne and defendant that the latter, in ordering his gallon, should also order one gallon for the witness, which the latter afterwards received, and for which he gave defendant the $1 it being a purchase by defendant and delivery to the witness solely for his accommodation, the liquor having been bought in Richmond, Va., and shipped on joint account; all of which was done in good faith, and not to evade the law. There was also evidence tending to show that defendant had brought some of the state's witnesses to court in his automobile, and was associating with them under suspicious circumstances, though he denied that he said anything to them about the case, and stated that they were to pay him for the service. The defendant testified that he was sick and confined to his bed, and that his wife ordered the liquor, and it was gotten by the witness Pink Thorne through her, and not through him; he having nothing to do with it. There was testimony as to defendant's good character, and also as to his bad character. He was convicted, and appealed.
Where the state offered evidence that accused delivered intoxicating liquor to a third person, receiving payment, and accused, to rebut the prima facie case, claimed that he delivered the liquor in good faith under an agreement that he should order it for such third person, the question of his good faith was for the jury.
Avery & Huffman, of Morganton, and Clark & Broughton, of Raleigh, for appellant.
T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for the State.
WALKER J. (after stating the facts as above).
When the state had offered evidence tending to show that defendant had delivered liquor to Pink Thorne and received $1 therefor from him, it was entitled to have the case submitted to the jury, this being some evidence of his guilt (State v. Johnston, 139 N.C. 640, 52 S.E. 273); and then it was for the jury to decide whether there had been an illegal sale or whether the defendant had acted in good faith in purchasing the liquor in Virginia for the mere accommodation of Pink Thorne. The question of good faith on the part of the defendant could not have been eliminated by the judge in his charge, although there may have been strong evidence to establish it, and especially when there was a view of the evidence which negatived it and tended to show defendant's guilt. State v. Whisenant, 149 N.C. 515, 63 S.E. 91; State v. Wilkerson, 164 N.C. 431, 79 S.E. 888. The charge of the court, which was a clear statement of the law applicable to the case in its every phase, gave defendant the full benefit of his contention that he had not, in fact, sold the liquor, nor delivered it illegally, and that it was purchased in Richmond, Va., one gallon for himself and one for Pink Thorne, as an accommodation to him; the judge telling the jury, plainly and distinctly, that if it was bought in Richmond, Va., and shipped to defendant for the purpose stated, in good faith, the defendant would not be guilty, and they should so find. The jury have said, under this fair and faultless charge, that defendant illegally sold the liquor, and did not buy it for the accommodation of Pink Thorne, having himself no profit or interest in the transaction. There was ample evidence to warrant this verdict. The jury might have found that the liquor was not shipped from Richmond, Va., but was procured in this state illegally, and delivered to defendant for money, which would be criminal (State v. Burchfield, 149 N.C. 537, 63 S.E. 89), or that he sold it outright in this state, the alleged purchase outside the state being a mere pretense or subterfuge, and intended as a cloak for his illegal act. The question of good faith, being one of fact, was undoubtedly for the jury to decide. The character of the defendant, the suspicious circumstances, and other matters deposed to by the witnesses, directly bore upon this question.
It is sometimes necessary to look below the surface of a transaction, or, as in this case, a sale of liquor, to discover its real nature. It may have a perfectly innocent form, when we view it superficially; whereas, if examined more critically, its illegal character is clearly exposed. It is the function of the jury to make this investigation, and among other circumstances they may consider is the good faith of the party. If this were not true, the prohibition law might easily be evaded, and flagrant violators of it would escape punishment. The law against the sale of liquor, which has received the pragmatic sanction of the Legislature, with the emphatic consent of the people, should be fairly and reasonably construed and strictly enforced according to their will as plainly expressed, leaving no chance or opportunity for its evasion and no loophole for the escape of the guilty. When a dealing in liquor is clearly within its prohibition, a conviction and an infliction of the penalty should follow, but at last the jury would find the facts, and the court declare the law thereon.
We have not considered the effect of the act of Congress ratified March 1, 1913, and known as the "Webb-Kenyon Law," 37 Stat. 699, c. 90 (U. S....
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