State v. Cardwell

• Citation: 166 N.C. 309,81 S.E. 628
• Decision Date: 22 April 1914
• Docket Number: (No. 340.)
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. CARDWELL.

(166 N.C. 309)

81 S.E. 628

STATE.

v.CARDWELL.

(No. 340.)

Supreme Court of North Carolina.

April 22, 1914.

1. Intoxicating Liquors (§ 223*)—Indictment—Offenses—Issues, Peoof and Variance.

One charged with unlawfully selling intoxicating liquors to a person named cannot be convicted of violating Revisal 1908, § 3534, punishing unlawful sales through agents, or of violating section 3527a, punishing soliciting of orders for intoxicating liquors, or under the federal Penal Code (Act March 4, 1909, c..", 21, 35 Stat. 1088 [U. S. Comp. St Supp. 1911, p. 1588]).

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 403; Dec. Dig. § 22;!.*]

2. Intoxicating Liquors (§ 147*)—Illegal Sales—Acts Constituting.

One who ordered whisky from a liquor house in a sister state at the request of a third person and solely for his accommodation was not guilty of illegally selling liquor in the county of delivery.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 257; Dec. Dig. § 147.*]

3. Intoxicating Liquors (§ 147*)—Illegal Sales—Acts Constituting.

Where accused, owning whisky which was either in the state or in a sister state, made a contract of sale, received the price, and through an express company delivered the whisky in the state, there was an illegal sale in the state.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 257; Dec. Dig. § 147.*]

4. Criminal Law (§ 1170*)—Harmless Error—Erroneous Exclusion of Evidence.

The error in excluding evidence to prove a fact is cured by the state admitting the fact.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.*]

5. Criminal Law (§ 678*)—Illegal Sales-Evidence of Different Sales—Election.

Where, on a trial for unlawfully selling spirituous liquors, the evidence of the state showed different sales, the court did not err in refusing to compel the state to elect between the evidence of the different sales on which it would rely for a conviction.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§. 15S0-15S3; Dec. Dig. § 678.*!

Appeal from Superior Court, Rockingham County; Devin, Judge.

Jeff Cardwell was convicted of unlawfully selling spirituous liquors, and he appeals. Affirmed.

The defendant was convicted upon the charge of unlawfully selling spirituous liquors to O. C. Sharp, who was the only witness for the state and testified as follows: "That he knew Jeff Cardwell, and that he lives in Reidsville. That he had a transaction with Jeff Cardwell relative to whisky. That he went to him and asked him if he would get him a gallon of whisky. He said he would, and witness told him the kind he wanted, and said he wanted Turkey Mountain Corn, and gave him the price of the whisky, $2.25. He got the whisky through the Southern Express Company's office six or seven hours thereafter." On cross-examination, the witness O. C. Sharp said he really did not know the date, but it was some time before Christmas, 1913. This $2.25 was the list price of the liquor house. That was what the liquor sold for. He had a catalogue of the prices of the different brands. This was the list price of this liquor, $2.25 is the catalogue price of Turkey Mountain Corn. Redirect examination: Witness said that he had not obtained any liquor from the defendant at all; had given to him money before that time two or three times, and received liquor. On these occasions he paid him the same amount of money, and got the same kind of, and amount of, liquor, but did not remember exactly the first time he went to him, but to the best of his knowledge he told defendant that he wanted a gallon of whisky and asked him if he would get it for him and he said he would. That he got the whisky through the Southern Express Company. When he received the first gallon he knew the price of Turkey Mountain Corn. That he thinks he got this information as to the price of the whisky at that time from some one who came in his store and left a catalogue there. That he did not get his first information as to the price of Turkey Mountain Corn from a booklet that came in the first package, but a booklet had come in every package, but he had heard the price before. But he knew after the first package came because a booklet was in it. This whisky gotten for him came through the Southern Express Company on every occasion, and he paid the defendant the list price every time. O. C. Sharp, being recalled, said that he did not know of his own knowledge where the liquor came from, but it was on all occasions put up in a carton with an express label on it." It was "admitted that the books of the Southern Express Company would show that the other liquors testified to as received by the state's witness O. C. Sharp came by the Southern Express Company from Danville, in the state of Virginia. At the conclusion of this evidence the Court instructed the jury that if they believed the evidence beyond a reasonable doubt that they would find the defendant guilty. To which charge the defendant excepted." There was a verdict of guilty, and from the judgment pronounced thereon the defendant appealed.

C. O. McMichael, of Wentworth, and P. W. Glidewell, of Reidsville, for appellant.

T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for the State.

ALLEN, J. [1] The defendant is charged in the indictment with unlawfully selling intoxicating liquors to O. C. Sharp, and, as he cannot be indicted for one offense and tried for another, we are not permitted to inquire whether he is guilty under Revisal, § 3534, which, as said in State v. Burchfield, 149 N. C. 540, 63 S. E. 89, "was intended to prevent the purchase by one person from an illicit dealer, " nor under Revisal, § 3527a (Pell's Rev. 1908), for soliciting orders for intoxicating liquors, nor under the federal Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1088 [U. S. Comp. St. Supp. 1911, p. 1588]).

If it could be reasonably inferred from the evidence that the defendant ordered the whisky he is charged with selling from a liquor house in Virginia, at the request of Sharp and solely for his accommodation, we would order a new trial, as such a transaction is not illegal under the state law in the county of Rockingham (State v. Whisenant, 149 N. C. 515, 63 S. E. 91; State v. Allen, 161 N. C. 226, 75 S. E. 1082), and the charge excludes from the jury the consideration of this view; but this does not appear.

There is some evidence that the whisky came by express from Virginia, but none that the defendant ordered it, or that it came from any one except himself, and nothing inconsistent with absolute ownership by the defendant. So far as appears from the record, the plaintiff owned the whisky, which was either in this state or in Virginia, and made the contract of sale, received the money, and through the express company delivered the whisky in this state, which would constitute an illegal sale. Pfeifer v. Israel, 161 N. C. 409, 77 S. E. 421. He does not purport to act as agent for a house in Virginia nor for Sharp, and throughout the transaction deals with the whisky as his own, and it would require a strained and highly technical construction of the evidence to reach the conclusion that the defendant ordered the whisky from a liquor house for the accommodation of the witness, particularly so when the defendant had it in his power to put the question beyond doubt.

The Webb-Kenyon Act is not remotely involved in this case, and we therefore refrain, from discussing it. The validity and construction of that act was argued at this term in Kistler v. Railroad, 79 S. E. 676, in which, in addition to very able briefs on the legalquestions involved, statistics are collected as to the growth of the sentiment in behalf of prohibition which cannot aid us in determining whether Cardwell sold liquor to Sharp.

If there was any error in excluding the evidence offered by the defendant that the label on the package showed that it came from Danville, it was cured by the admission made by the state.

There was no error in denying the motion to compel the state to elect between the evidence of the different sales. State v. Freeman, 162 N. C. 596, 77 S. E. 780, 45 L. R. A. (N. S.) 977.

No error.

CLARK, C. J. Concurs in the result and in the opinion, but not in the obiter that if the liquor had been shipped in from Danville, Va., the defendant could not have been convicted, citing State v. Whisenant, 149 N. C. 515, 63 S. E. 91, and State v. Allen, 161 N. C. 226, 75 S. E. 1082, for the reason that those cases were written before the passage of the Webb-Kenyon law, which was enacted for the very purpose of taking away the defense, on which those decisions were based, that interstate shipments of liquor were protected from the enforcement of a state statute. Rev. § 2080, makes the place of delivery of intoxicating liquors the place of sale. This act was sustained in State v. Patterson, 134 N. C. 612, 47 S. E. 808, which has been repeatedly cited since with approval. But in State v. Whisenant and State v. Allen, supra, it was held that where the liquor had been shipped in from another state the decision in State v. Patterson, supra, and Rev. § 2080, would not apply. It was to cure this defect that the Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699) was passed, which is entitled "An act divesting intoxicating liquors of their interstate character in certain cases." This act provides that the shipment of intoxicating liquors into any state or territory in which said spirituous or intoxicating liquor "is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States, * * * is hereby prohibited."

The shipment of intoxicating liquors from another state into this state being thus deprived by act of Congress of its interstate character, it follows that when the liquor, if it came...