State v. Gibson

• Decision Date: 21 December 1897
• Citation: 121 N.C. 680,28 S.E. 487
• Court: North Carolina Supreme Court
• Parties: STATE v. GIBSON.

28 S.E. 487

121 N.C. 680

STATE

v.GIBSON.

Supreme Court of North Carolina.

Dec. 21, 1897.

Intoxicating Liquors— Giving on Election Day —Sufficiency of Evidence—Intent.

1. It was proper to refuse to instruct that the evidence was insufficient to convict of giving away intoxicating liquor on an election day where there was direct evidence that defendant gave away whisky within the time and at the place charged.

2. One who casually found whisky on election day, and passed it to another, who drank it, was guilty of violating Code, § 2740, prohibiting the giving away of intoxicating liquor on such day.

3. The section does not require that the liquor should be given with intent to influence any voter.

Appeal from criminal court, Buncombe county; Ewart, Judge.

John Gibson appeals from a conviction of giving away liquor on an election day. Affirmed.

Indictment for giving away liquor on the day of an election, tried before Ewart, J. George Koney, witness for the state, testified: "On May 6, 1895, there was an election in Asheville for mayor and aldermen. About 11 o'clock that day the defendant handed me a bottle of liquor at a warehouse near a voting place. I saw Noland take a drink out of it. Afterwards I was in the basement of the opera house, and saw defendant with liquor. He drank some of it, and handed it to me." On cross-examination the witness said that he heard Noland say that defendant had found liquor in the warehouse. Wade Mooney, witness for the defendant, testified: "I saw defendant go into the stall, and heard Noland say, 'I have found some whisky in this stall.' I saw defendant take a drink of it, and heard Roney ask defendant for a drink, and defendant said, in reply, 'No; I will not give you a drop; you can get it the same way I did;' and I then saw him put the bottle back. Defendant was drunk that day. I also saw a man by the name of Miller get a drink." J. J. Noland, for the defendant, testified: "I know George Roney. His general character Is bad. On the day of the election defendant found the bottle of liquor in a stall in a warehouse near a voting place. Heard defendant say: 'I have found a bottle of whisky, and am going to drink it.' I told him he had better let it alone; that it was poison. I heard one of the men, who was standing near, say, 'Give me some of it.' Defendant said: 'I won't do It. I'm not going to get into any trouble about it. You can get it the same way I did.' He then put the bottle back, and the others took it, and drank. I did not drink any of the liquor. Don't know who put it there. Am under indictment for giving away liquor on election day." Defendant testified in his own behalf "I came up street on the morning of election. Went into a stall in the warehouse, and saw a bottle of whisky. Did not put it there, nor do I know who did. Noland said, 'You had better not drink it; it might be poison.' I said, 'I will drink It, ' and drank about half of it. Roney asked me for a drink. I told him that I would not give it to him; that he might get it the same way I had. I know nothing about any liquor in the opera house. Had drunk some whisky that day. Have been indicted several times for various offenses." The state called Miller, in rebuttal, who testified: "I saw defendant give some liquor to Roney in a stall In the warehouse, and Roney drank it. Several men were standing around at the time. It was on the election day. Saw Noland take the bottle of whisky from defendant, and say, 'If it did not kill you, it won't kill me;' and he drank some of it, and passed the bottle to me." At the close of the state's evidence In chief the defendant asked the court to...