State v. Cain
| Decision Date | 31 October 1876 |
| Citation | 9 W.Va. 559 |
| Parties | STATE OF WEST VIRGINIA v. JOHN CAIN. |
| Court | West Virginia Supreme Court |
1. An indictment founded upon the third section of chapter ninety-nine of the acts of the Legislature of 1872-3 charging that C. on the first day of December, A. D. 1873, in Wood county, unlawfully did sell intoxicating liquors to one Michael Toole, a minor, under the age of twenty-one years he, the said C., knowing the said Michael Toole to be a minor, and not having the written order of his parents guardians, or family physician therefor, contrary to the form of the statute in such case, made and provided, and against the peace and dignity of the State; held good after verdict upon a motion in arrest of judgment.
2. On the trial of such indictment, it is competent and not improper for the minor to state on his examination as a witness on behalf of the State, upon his oath, his age to the jury, with the view of proving that he was a minor at the time of the sale of the intoxicating liquors in the indictment mentioned, to him by the defendant, and such statement may go to the jury as evidence to be considered by them, notwithstanding there is evidence given to the jury tending to show that his father and mother are living. And in such case, it is not error for the court to refuse to instruct the jury that " Unless it is proved beyond reasonable doubt, by the best evidence of which the case will admit, and the evidence of the minor himself is not such evidence, that the minor was at the time of the alleged selling to him of intoxicating liquor by defendant, under the age of twenty-one years, they must find the defendant not guilty."
3. Upon the trial of such indictment, it is not error in the court to refuse to instruct the jury that
4. The words " knowing the said Michael Toole to be a minor," in said indictment contained, may and should be regarded as immaterial, and as surplusage, at the trial.
5. It was error, for the court, on such trial, to instruct the jury that " unless the jury believe from the evidence that the defendant, since the fourth day of April, 1873, and before the finding of the indictment, sold to the said Michael Toole intoxicating liquor, and that Toole was then a minor, and the defendant knew he was a minor, or had good cause to believe that he was a minor from reasonable inquiry by him made, they must find the defendant not guilty."
6. Under the provisions of the first clause of section three, of chapter ninety-nine of the acts of the Legislature of West Virginia of the years 1872-3, to constitute a violation of said third section, it is not necessary to prove that the person who sold intoxicating liquors to a minor, knew at the time of the sale that the minor was a minor. It is sufficient, without proof of such knowledge, under the provisions of said third section of said chapter, if it appear beyond reasonable doubt, that the sale was made by the defendant to the person alleged in the indictment, at the place alleged, and that such person was then a minor, unless it also appears, that the sale was made upon the written order, & c., specified in said third section, and unless the prosecution is barred by the statute of limitations, or the sale was not made within the jurisdiction of the court.
7. An indictment founded upon a provision of said third section of said chapter ninety-nine of the acts of the Legislature of 1872-3, is good, though it contain no allegations touching any of the provisions of the first and second sections of said chapter.
8. The sale of intoxicating liquors to a minor is an offense under the third section of chapter ninety-nine of the acts of the Legislature of 1872-3, unless upon the written order, & c., of the parent, & c., specified in said section, though the vendor does not know that the purchaser is a minor.
Writ of error to a judgment of the circuit court of Wood county, rendered in an action therein pending, on the tenth day of June, 1874, in which the State of West Virginia was plaintiff, and John Cain was defendant.
The facts of the case are set forth in the opinion of the Court.
Hon. James M. Jackson, Judge of said circuit court, presided at the trial below.
W. S. Sands for said Cain, plaintiff in error.
H. M. Mathews, Attorney General, for the State.
HAYMOND, PRESIDENT:
This is a case upon an indictment charging the defendant, that he (John Cain), on the first day of December, A. D. one thousand eight hundred and seventy-three, in the county of Wood, unlawfully did sell intoxicating liquors to one Michael Toole, a minor under the age of twenty-one years, he, the said John Cain, knowing the said Michael Toole to be a minor, and not having the written order of his parents, guardians, or family physician therefor, contrary to the form of the statute in such case made and provided, & c. The defendant appeared to the indictment, and neither moved to quash it, nor demurred thereto, but plead not guilty, and upon the plea of not guilty, issue was duly joined. A jury, duly selected and sworn in the cause, after hearing the evidence, and receiving instructions from the court, by their verdict found the defendant guilty, and assessed his fine at twenty dollars. After the verdict, the defendant moved the court in arrest of judgment on the verdict of the jury, on the ground that the indictment does not show at what particular place in the county of Wood, the intoxicating liquors were sold. The court overruled the defendant's said motion, and rendered judgment against the defendant for the fine assessed by the jury, and the costs, and rendered judgment, in addition to the payment of the fine and costs, that the defendant be imprisoned in the jail of the county of Wood, for the period of ten days, & c. The defendant obtained from this Court a writ of error to said judgment.
During the trial of the cause, the defendant's attorney excepted to an opinion of the court, and a bill of exceptions to the opinion was taken, from which it appears that the State, to maintain the issue on its part, gave evidence to the jury, tending to prove that the defendant was a saloon keeper in the City of Parkersburg, in Wood county, in the State of West Virginia, and that, on several occasions, he had, between the fourth of April, 1873, and the time of the finding of the indictment in this cause, sold to Michael Toole intoxicating liquors, and the State, to prove that the said Michael Toole was a minor, inquired of said Michael Toole, while he was on the witness stand, how old he was, to which he replied that he was not yet eighteen years old, and the State offered no other evidence to prove that said Michael Toole was an infant under the age of twenty-one years, except there was evidence given to the jury by the State, tending to prove that, on several previous occasions, the defendant had refused to sell liquor to the prosecuting witness, Michael Toole, on the ground that said Toole was a minor; and the defendant, to maintain the issue on his part, gave to the jury, evidence tending to prove, that on three of the occasions when said Toole had sworn he had bought liquor of the defendant, that none was, in fact, sold to him; also, that Toole had said he would not have had the defendant indicted if he had not insulted his, the witness', mother, when she went to him (the defendant) to remonstrate with him about selling his father liquor. Also, evidence tending to prove that the said witness, Toole, had represented to several parties, including the defendant, that he was of age; and also, evidence tending to prove that the said Toole, at the Parkersburg city election, in January, 1874, had offered to vote; and it also appeared from the evidence, that both the father and mother of the said witness, Toole, were still living. And after the evidence was all given to the jury, the defendant asked the court to give to the jury four separate instructions.
The first instruction the court refused to give, as asked, but modified it, and gave it to the jury as modified.
The second instruction the court gave as asked.
The third instruction the court refused to give to the jury.
And the fourth instruction the court refused to give as asked, but modified it, and gave the instruction as modified.
To the refusal of the court to give the instructions asked, and the giving the first and fourth instructions, as modified, the defendant excepted.
The first question to be considered is, did the court err in overruling the defendant's motion, made in arrest of judgment. The counsel for the defendant, to show that the court erred in overruling his said motion, cited in argument here, the case of Commonwealth v. Head, 11 Grattan R. 819, and Commonwealth v. Young, 15 Grattan, 664.
In the case first named, the syllabus is ...
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