State v. Mobryer

• Decision Date: 16 May 1887
• Citation: 98 N.C. 619,2 S.E. 755
• Court: North Carolina Supreme Court
• Parties: State v. MoBryer.

2 S.E. 755

(98 N.C. 619)

State

v.MoBryer.

Supreme Court of North Carolina.

May 16, 1887.

1. Intoxicating Liquors—Sale to Minor—Physician.

A practicing physician who "keeps on hand intoxicating drinks or liquors for the purpose of sale or profit, " and thus brings himself within the definition of a "dealer" in such drinks, is guilty of a violation of Code N. C. § 1077, which forbids "dealers in intoxicating drinks or liquors " to sell or give the same in any quantity to unmarried minors, knowing them to be such, if he prescribes for an unmarried minor, knowing him to be such, drinks or liquors such as, in his judgment, the minor ought to take as a medicine, and thereupon sells or gives him the same, even if he honestly supposes that such act is not forbidden by the law.¹ Davis, J., dissenting.

2. Same— Statutes.

Said section 1077 of the Code of North Carolina is not affected by Acts N. C. 1876-77, c. 115, and Id. 1873-74, c. 133, which prohibit the sale of spirituous liquors, in a certain contingency, in the town of Shelby.

Appeal from Cleveland county.

The Attorney General, for the State.

J. F. Hoke, for defendant.

Merrimon, J. We have had occasion at the present term to construe the statute (Code, § 1077) forbidding "dealers in intoxicating drinks or liquors" to sell or give the same in any quantity to unmarried minors, knowing them to be such, and we have held that the comprehensive, explicit, and unqualified terms employed, and the purpose contemplated by it, excludes any exception arising by implication or allowable by interpretation. It therefore follows that if such a dealer, —that is, in the language of the statute, "if one keeps on hand intoxicating drinks or liquors for the purpose of sale or profit, "— being a practicing physician, prescribes for such a minor, knowing him to be such, such drinks or liquors as a medicine that in his judgment the minor ought to take, and thereupon, sells or gives him the same, he would be guilty of a violation of the statute. This is so, as we have said, because there is no exception to or limitation upon the sweeping terms of the statute forbidding such sales and gifts.

But it is said: "Can it be that a practicing physician shall not sell or give such drinks and liquors to his patients when they require the same?" Certainly not if he is a dealer in them; otherwise he may do so. A practicing physician who is such dealer is prohibited from making such sales and gifts as certainly as other persons. It is suggested that he does not sell or give any such intoxicants as a beverage, but as a medicine. But the statute makes no such distinction. Why is none provided? Especially why not in this statute, while such distinction is provided in similar statutes forbidding thesale of intoxicating liquors generally in certain prescribed localities, as in the town of Shelby, where the sale in question was made, and elsewhere? The striking omission was scarcely an inadvertence. It is not unreasonable to infer that it was intentional, and that by it the legislature intended the more certainly to effectuate the purpose of the statute.

The counsel for the appellant pressed upon our attention the case of State v. Wray, 72 N. C. 253, which decided that a druggist might in good faith sell as a medicine, by direction of a physician, spirituous liquors in a quantity less than a quart. That case, it seems to us, went to the extreme limit of the power of interpretation; but, treating it as well warranted, it does not apply here. It applied to a statute forbidding generally the sale of intoxicating liquors by a measure less than one quart, and was based upon the view that the statute was intended to prevent and suppress the abusive use of spirituous liquors generally, and to enhance the revenues of the state. But the statute under consideration is different in its purpose and scope'from that just referred to. It is not so general. It is limited in its operation to a class, and is intended to protect a class of young people of immature judgment and inexperience; and the total absence of exceptive provisions tends strongly to confirm the view that the intention was to cut off all opportunity for dealers —all dealers—in intoxicating drinks and liquors to sell or give the same to them for any purpose. The purpose is not to prevent such minors from having such intoxicants for proper purposes at proper times, but to prevent dealers in them from supplying them. The decision of this court in State v. Wool, 86 N. C. 708, is founded upon the same principle of interpretation as that in the case above cited, and what we have said applies with equal force to it.

That the defendant in good faith thought he had the right to sell the minor the spirituous liquors did not excuse him from criminal liability. This could only affect the measure of punishment. It is a mistaken notion that positive, willful intent, as distinguished from a mere intent, to violate the criminal law, is an essential ingredient in every criminal offense; and that, where there is the absence of such intent, there is no offense. This is especially so as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. "When the language is plain and positive, and the offense is made to depend upon the positive, willful intent and purpose, nothing is left to interpretation. It would be a very dangerous exercise of the power of courts to interpret positive statutes so as, in effect, to interpolate into them exceptive provisions. If the court could do so, there would scarcely be a limit beyond which it might not go, and thus make, instead of interpret, the law. Hence in State v. Dickens, 1 Hayw. (N. C.) 468, (407,) where the defendant was indicted for extortion in demanding and receiving unlawful fees, he could not be excused upon the ground that he did so through mistake and bad advice. And also in State v. Boyett, 10 Ired. 336, where the defendant was charged with voting unlawfully, he was held to be guilty, although he honestly thought he had the right to vote, and had been so advised by an intelligent person supposed to be familiar with the law. In that case, Pearson, J. said: "The question, in effect, was, shall a man be allowed, in excuse of a violation of a law, to prove that he was ignorant of the very law under which he professed to act, and under which he claimed the privilege of voting? If he was not ignorant of the law, —and that he cannot be heard to allege, —then he voted knowingly, and by necessary inference fraudulently." And likewise in State v. Presnell, 12 Ired. 103, it was held that it is not a sufficient justification for a person who does a criminal act under a statute to show that he did not believe it was unlawful. In that case Chief Justice Ruffin said: "It was said that, when one believes he is not doing an unlawful thing, there is not the guilty mind necessary to constitute a crime. But this is not correct.

When the act is unlawful and voluntary the quoanimo is inferred necessarily from the act." And so, also, in State v. Hart, 6 Jones, (N. C.) 389, it was again held that the defendant was guilty of unlawful voting, although he honestly thought he had the right to vote, and had been so advised; Ruffin, J. saying: "The defendant voluntarily gave an illegal vote, and necessarily the unlawful purpose attaches prima facie to the act. It is neither a justification nor an excuse for such an act that other persons advised the party that it was lawful, and much less that other persons thought and believed it to be lawful. * * * He acted on his own mistaken or willfully erroneous judgment, and must abide the consequences." Ignorantia legis neminem ex-cusat.

The correctness of these decisions has not been seriously questioned, and decisions to the same effect, made in this and other states in large numbers, might be cited; some of them interpreting statutes more or less like that now under consideration. Whart. Crim. Law, §§ 2441, 2442, and numerous cases there cited; Bish. St. Crimes, §§ 1019, 1020, 1023, and cases there cited. It is only when the positive, willful purpose to violate a criminal statute, as distinguished...