State v. McMinn
| Citation | 83 N.C. 668 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1880 |
| Parties | STATE v. GEORGE W. MCMINN. |
INDICTMENT for selling liquor in violation of the statute, tried at Spring Term, 1880, of HENDERSON Superior Court, before Schenck, J.
The defendant was indicted for selling spirituous liquor to one Nelson by a measure less than a quart without having a license therefor, and on the trial the evidence by Nelson was, that the defendant had a room in the town of Hendersonville, and in the room was a table with a decanter on it containing spirituous liquor and tumblers, and in the top of the table was a small hole; that during a court week, as well as at sundry other times, he went into the apartment and poured out a drink of spirituous liquor less than a quart and drank it, and then dropped some money, at the rate of a nickel for a drink, into the hole in the table; that this was done in the presence of the defendant, and nothing was said between them.
Upon the evidence the defendant asked the court to charge the jury that there was no evidence of a sale or contract for sale of spirituous liquors on his part. This was refused, but in place thereof the court charged that if the jury should believe from the testimony that the spirituous liquor drank by the witness was the property of the defendant, and that he received the money put into the hole by the witness in payment therefor, and that this was a device on the part of the defendant to evade the statute against retailing, the defendant was guilty. On being found guilty and judgment pronounced, the defendant appealed.
Attorney General, for the State .
No counsel for the defendant.
There is no error in the refusal of the charge requested, nor in the charge given. A sale is the transmutation of the property in a personal chattel from one to another on a quid pro quo, paid or agreed to be paid, and such a change of property in the retail of spirituous liquors by the small measure is usually effected by the delivery of the article and the payment of the price simultaneously, but it may be in other modes. If the liquor come directly or indirectly from the owner to another on a valuable consideration, it is a sale; and if so, it is perfectly immaterial as to the mode or manner of it. To constitute a sale under the statute against retailing, there is no necessity for a manual separation and delivery of the parcel by the retailer to the customer, but it will be a delivery sufficient in law if...
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... ... or promises to pay." Krnavek v. State, 38 Tex ... Cr. R. 44, 41 S.W. 612; People v. Law & Order Club, ... 203 Ill. 127, 67 N.E. 855, 62 L. R. A. 884; 7 Words & Phrases ... Judicially Defined, 6291, 6292. In State v. McMinn, ... 83 N.C. 668, an indictment for retailing without license, ... Judge Dillard, speaking for this court, said: "A sale is ... the transmutation of the property in a personal chattel from ... one to another on a quid pro quo, paid or agreed to be paid, ... and such a change of property in ... ...
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State v. Kittelle
...also of a deposit for the customer, instead of a manual delivery, which was an essential element of the sale. State v. Poteet and State v. McMinn, supra. So, one made a bargain with the dealer to buy a quart of spirituous liquors, but to take it from time to time, in parts of a quart, till ......
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State v. Holder
...because the money was paid to Holder (State v. Best, 108 N. C. 747, 12 S. E. 907), or any other device to evade the law was used (State v. McMinn, 83 N. C. 668). It is also true that, if Sides sold liquor illegally, Holder would be guilty, if he aided or abetted such illegal act. But if Hol......
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