State v. Burchfield

• Decision Date: 09 December 1908
• Citation: 63 S.E. 89,149 N.C. 537
• Parties: STATE v. BURCHFIELD.
• Court: North Carolina Supreme Court

63 S.E. 89

149 N.C. 537

STATE v. BURCHFIELD.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Mitchell County; Councill, Judge.

Isaac Burchfield was convicted of unlawfully retailing liquor, and he appeals. Affirmed.

Gus Tolley, a witness for the state, testified: "George Tolley, the defendant, and myself were at the depot in Cranberry, N. C., and we wanted some whisky. Defendant said that Bill Triplett had some, and we could get some from him thereupon we agreed to make up [the amount], and get some. I put in 75 cents, George put in 75 cents, and defendant $1.50 and defendant took the money and went after the liquor. In a short time he came back with a gallon of whisky in a jug, and said he got it from Bill Triplett. We then divided the whisky. I took the jug and filled two quart bottles and gave them to the defendant and George Tolley, and I kept the half gallon of liquor in the jug." The defendant, in his own behalf, testified: "Gus Tolley, George Tolley, and myself were at the depot in Cranberry, N.C. We all wanted some liquor. I told them we could get some from Bill Triplett, who was an illicit dealer in liquor, and we agreed to make up [the amount], and buy a gallon. I wanted a half gallon, and put in $1.50. They wanted a quart each and put in 75 cents each. I took the money and went to where Bill Triplett was, about 100 yards away, and paid him $3, and got a gallon of liquor from him, and took it back to the depot where Gus and George Tolley were waiting for me. After we all took a drink, Gus and George Tolley poured out a half gallon of the liquor into two quart bottles for me, and they took the other half gallon in the jug. I had no interest whatever in Bill Triplett's liquor, and was not trying to sell it for him and was in no way acting as agent for him." The court instructed the jury that, if they found the facts to be as stated by the defendant in his testimony, they should return a verdict of guilty. The jury convicted the defendant and, judgment having been rendered upon the verdict, he appealed to this court.

S. J Ervin and M. N. Harshaw, for appellant.

Hayden Clement, Asst. Atty. Gen., for the State.

WALKER J.

It may be conceded for the sake of argument that there is no evidence in this case that the defendant sold any liquor with or without a license, unless in buying the whisky from William Triplett, the illicit dealer, for Gus and George Tolley, he acted as his agent, or, more properly speaking, aided and abetted the illicit dealer in the sale of the whisky. In the case of State v. Smith, 117 N.C. 809, 23 S.E. 449, it was said that "this court has never held and does not now give its sanction to the doctrine that the purchaser from an illicit vendor, even when he knows him to be such, is particeps criminis, and it necessarily follows that the agent through whom he buys is in no worse plight. But it was incumbent on the defendant, in order to excuse himself on that ground, to satisfy the jury that he did actually buy from another in the capacity of agent for the prosecuting witness, and not as an agent or employé of a person who furnished the liquor, or as the agent both of such person and the prosecuting witness." While it is true that a person who buys for himself, even from an illicit dealer, may not be criminally liable, because he cannot be considered, in a legal sense, as assisting the dealer in making a sale by merely buying from him, yet, under the present law, he does aid him in making a sale to another if he procures the money which is to be paid to the dealer as the the price for the liquor, and then pays it to him, receives the liquor, and delivers it to the purchaser. The law had prohibited the sale of liquor at the place where this liquor was sold by Triplett and delivered to the Tolleys. Acts 1903, p. 572, c. 349. It is provided by Revisal 1905, § 3534, as follows: "If any person shall unlawfully procure and deliver any spirituous or malt liquors to another, he shall be deemed and held in law to be the agent of the person selling said spirituous and malt liquors, and shall be guilty of a misdemeanor and punished in the discretion of the court." The meaning of that section is not very aptly expressed, but the Legislature has sufficiently declared the intention to make it criminal for any person to procure liquor from an illicit dealer by purchase and to deliver it to another, when both the purchase and the delivery are made in a place where the sale of liquor is prohibited by law. In such a case the person who buys the liquor and delivers...