State v. Kirkham

• Decision Date: 30 June 1841
• Citation: 1 Ired. 384,23 N.C. 384
• Court: North Carolina Supreme Court
• Parties: STATE v. WILLIAM KIRKHAM.

1 Ired. 384

23 N.C. 384

STATE

v.WILLIAM KIRKHAM.

Supreme Court of North Carolina.

June Term, 1841.

On an indictment for retailing spirits by the small measure without a licence, where the contract appeared to be to deliver to the purchaser from time to time spirits, in parts of a quart as he should call for them, with an engagement on his part to take, in the whole, a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received, it was held by the Court, that this was a violation of the act of Assembly, prohibiting the sale of spirits by the small measure without a licence.

Where in such a case the special verdict does not find that the selling was without licence, judgment must be rendered for the defendant; for such an averment is necessary in an indictment under the Statute, and in a special verdict must be found by the Jury.

This was an indictment against the defendant for retailing spirituous liquors “by the small measure, to-wit, by a measure less than a quart, without first obtaining a licence therefor according to law, against the form of the statute, &c.” The case came on for trial upon the plea of not guilty, at Randolph Superior Court of Law, before his Honor Judge PEARSON, when the Jury found the following special verdict: “We find, that about eighteen months ago, at a muster at one McMaster's, the defendant had spirituous liquors in a small waggon for sale, and that one Emsley Fields applied to him for the purpose of purchasing some; that defendant told him he could not sell less than a quart; that Emsley Fields agreed to purchase a quart, provided the defendant would permit him to take it in small quantities, as he might want it, until the quart was taken, to which defendant agreed; and that during the day Emsley Fields took three cups full, the cup holding half a pint. We further find, that in July last, at a muster at one Cox's, the defendant again had spirituous liquors in his waggon, when Fields got of him the remaining half pint, and paid him for the quart twenty cents, which was the price originally agreed upon. We further find, that twenty cents was the price at which the defendant usually sold spirituous liquors by the quart, but that Fields would not have purchased but for the agreement on the part of defendant that he might take it in small quantities, as he might want it. Whether upon these facts the defendant be guilty in manner and form as charged, the jury are ignorant, and pray the opinion of the Court. If the Court be of opinion that upon these facts the defendant is guilty, then the jury find him guilty, &c., but if the Court should be of opinion that upon these facts he is not...