State v. Dalton

• Decision Date: 10 December 1888
• Citation: 8 S.E. 154,101 N.C. 680
• Parties: STATE v. DALTON.
• Court: North Carolina Supreme Court

8 S.E. 154

101 N.C. 680

STATE v. DALTON.

Supreme Court of North Carolina

December 10, 1888

Appeal from superior court, Macon county; MACRAE, Judge.

Under the license acts of 1885 and 1887, an unlicensed person not a druggist cannot lawfully retail liquor for medicinal purposes on a physician's prescription.

Kope Elias, for appellant.

The Attorney General, for the State.

DAVIS J.

Indictment for retailing without license. The indictment contained three counts: (1) The first charged the defendant with unlawfully selling and retailing spirituous liquors to Joseph Beasly, by measure less than a quart, to-wit, by the pint, not having a license, etc. (2) The second charged the unlawful selling etc., to Joseph Beasly, by a measure less than a gallon to-wit, by the quart, not having a license, etc. (3) And the third charged the unlawful selling, etc., to Joseph Beasly by a measure less than five gallons, to-wit, by the gallon, not having a license, etc. The indictment was found by the grand jury at fall term, 1887. Before the jury was impaneled, the defendant moved to quash the indictment for want of jurisdiction, upon the ground that under the revenue act of 1887, §§ 31 and 35, the jurisdiction was in the court of a justice of the peace. Motion denied, the court holding that the defendant might have the benefit of this point under the plea of not guilty. Defendant excepted.

J. Beasly, witness for the state, testified that "he bought whisky from defendant in January or February, 1887, a quart each time, *** in this county. Defendant keeps a regular place of sale there,--a grocery. About the last of January or first of February, 1887, was the first time witness bought whisky of defendant. After that he bought again, both times a quart. Witness bought the whisky from defendant, on a physician's certificate for his sick wife. Defendant is not a druggist. Counsel for defendant asked the court to charge the jury that if defendant sold the whisky in good faith for medical purposes, on a prescription of a physician, he was not guilty. This was declined, and defendant excepted. The court charged the jury that if defendant sold whisky to the witness, as alleged, at a time more than six months before the finding of the bill, the court would have jurisdiction, but if the sale took place within six months before the finding of the bill, this court would not have jurisdiction. Defendant excepted. The court further instructed the jury that the defendant, not being a druggist, could not sell by the quart without a license, even upon a physician's prescription. Defendant excepted." There was a verdict of guilty, judgment, and appeal.

The only evidence as to the time when the alleged offense was committed shows that it was in January or February, 1887 before the enactment of chapter 135 of the Laws of 1887, which was March 7, 1887; but so far as relates to the offense charged in the indictment, it is immaterial whether it occurred under chapter 175, § 34, Acts 1885, or chapter 135, § 35, Acts 1887, as they do not differ in respect to the matters charged in this indictment. The slight changes made in the former by the latter in no way affect the penalties imposed, and, as to them, the latter does not repeal the former. State v. Sutton, 100 N.C. 474, 6 S.E. Rep. 687. Whether or not under the act of 1885 or 1887 the punishment does not exceed a "fine of $50 or imprisonment for thirty days," and a justice of the peace had exclusive original jurisdiction "within six months after the commission...