State v. Mitchell

• Decision Date: 15 November 1911
• Citation: 72 S.E. 632,156 N.C. 659
• Parties: STATE v. MITCHELL.
• Court: North Carolina Supreme Court

72 S.E. 632

156 N.C. 659

STATE v. MITCHELL.

Supreme Court of North Carolina

November 15, 1911

Appeal from Superior Court, Forsyth County; Adams, Judge.

George Mitchell was convicted of selling liquor in violation of the prohibitory law, both in the recorder's court and on appeal to the superior court, and he appeals. Affirmed.

An exchange or barter of whisky is a violation of Pub.Acts (Ex.Sess.) 1908, c. 71, making it unlawful for any person or persons, firm or corporation, to manufacture, or in any manner make or sell, or otherwise dispose of intoxicating liquors for gain.

Louis M. Swink and J. S. Grogan, for appellant.

T. W Bickett, Atty. Gen., and G. L. Jones, Asst. Atty. Gen., for the State.

BROWN J.

There is but one question presented, and that is: Is it a violation of the prohibition act for one to lend another whisky, upon the understanding that other whisky will be returned in place of it? The evidence is contradictory. The prosecuting witness testified that he purchased the liquor for cash, and paid 50 cents down when he made the purchase. The defendant testified that he furnished whisky to the prosecuting witness, but that it was a loan, and upon the understanding that the whisky was to be returned as soon as an order made by prosecuting witness could be received.

The point comes up on the charge of the court, who instructed the jury as follows: "If you find from the evidence, beyond a reasonable doubt, that the witness Curry applied to the defendant for liquor, and it was then and there agreed by and between the witness Curry and the defendant that the defendant would let Curry have whisky, in consideration of an agreement on the part of Curry to deliver to the defendant other whisky in return for that which he received, and after this agreement was made the defendant delivered to the witness Curry a quantity of whisky, in consideration of the agreement of Curry to deliver to the defendant a like quantity when Curry's whisky arrived on the train, such transaction, if not a technical sale, would nevertheless be such as is made unlawful by the statute to which your attention has been directed, and your verdict will be 'guilty."'

This exact question has never been decided in this state, and it has been decided both ways in other jurisdictions. The Cyclopædia of Law and Procedure says: "Where the statute prohibits the sale of liquor by certain persons or under certain conditions, when the indictment distinctly charges the sale, there can be no conviction on evidence which proves a gift or exchange of liquor as distinguished from a sale." Again, on page 181 of the same volume: "A loan of liquor, with the understanding that it is to be repaid in other liquor of the same kind, is not a sale." 23 Cyc. 269. The author of the article in Cyc. is Henry C Black, author of the well-known work on Intoxicating Liquors. The cases cited in the notes do not appear to fully sustain the text. It is held in Georgia that an exchange of liquor does not constitute a sale. Skinner v. State, 97 Ga 690, 25 S.E. 364. Same in Arkansas. Robinson v. State, 59 Ark. 341, 27 S.W. 233. It was so decided in Texas in Ray v. State, 46 Tex. Cr. R. 176, 79 S.W. 535, but specially held otherwise, and the Ray Case overruled, in Tombeaugh v. State, 50 Tex. Cr. R. 286, 98 S.W. 1054, 8 L. R. A. (N. S.) 937, 123 Am. St. Rep. 841.

The true rule, we think, is clearly stated by the Supreme Court of Texas in the latter case: "While the doctrine of an accommodation exchange seems to have been recognized by this court in the Ray Case, supra, in our opinion that case should be overruled. There might be a case--to illustrate, where some member of a family should be bitten by a snake, or some venomous insect--that would require the immediate use of whisky, with no time to send for a physician to obtain a prescription. In such case it might be allowable to borrow whisky from a neighbor on account of such emergency. We do not believe the doctrine should be extended beyond some pressing necessity. Certainly not to a case of a loan by one club member of whisky to a stranger in social drinking as a beverage. In our opinion, it makes no difference in this respect...