State v. Muncey.

• Decision Date: 22 September 1886
• Citation: 28 W.Va. 494
• Court: West Virginia Supreme Court
• Parties: State v. Muncey.

28 W.Va. 494

State

v.Muncey.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1886.

Decided September 22, 1886.

Upon an indictment for selling spirituous liquors, wine, &c, the jury found the defendant guilty, and the court entered judgment against him on proof that the defendant had sold a bottle of the 4'essence of cinnamon" to the State's witness; that before the sale the defendant said to witnesss, if he wanted to drink it he could not get it, but if he wanted it for cooking purposes he could have it, and the witness having answered he did not want to drink it, the defendant sold it to him, and that witness drank part of it and it affected him so he could not see after night. On writ of error this Court affirmed said judgment by a divided Court.

R. S. Blair for plaintiff in error.

Alfred Caldwell, Attorney-General, for the State.

Snyder, Judge:

Writ of error to a judgment of the circuit court of Ritchie county pronounced, February 20, 1884, upon an indictment against the defendant, James Muncey, for selling, without a State license therefor, spirituous liquors, wines, porter, ale, beer and drinks of a like nature. The defendant was found guilty by the verdict of a jury, on which verdict the judgment wTas entered.

The defendant saved a bill of exceptions, from which it appears, that he moved the court to set aside the verdict, and, his motion being overruled, at his instance the court certified all the facts proved on the trial. The facts thus certified are as follows: The State proved, that the defendant within one year before the finding of the indictment sold to the witness, Henry Mathers, at his store in said county, a bottle of the "essence of cinnamon, '' for which he paid defendant ten cents; that witness drank a part of it, and one Snodgrass drank another part, and he took the balance to one Davis; that the said "essence of cinnamon" affected the witness so he could not see after night. It was then proved by the defendant, that before he sold the bottle of "essence ot cinnamon," he said to the witness, Mathers, that "if he wanted it to drink, he could not have it, but it he wanted it for cooking purposes, he could have it, and being answered by Mathers that he did not want it to drink, he sold it to him." This was all the evidence.

The defendant, the plaintiff in error, insists that the court erred in overruling his motion to set aside the verdict ot the jury because the same is not warranted by the evidence?

The statute declares: "No person without a State license therefor shall keep a hotel or tavern, or furnish intoxicating drinks or refreshments at a public theater, or sell, offer or expose for sale, spirituous liquors, wine, porter, ale or beer, or any drink of a like nature. And all mixtures or preparations known as 'bitters' or otherwise, which will produce intoxication, whether patented or not, shall be deemed spirituous liquors, within the meaning of this section." Sec. 1 ch. 82 Am'd Code, p. 216.

And section 44 of this same chapter of the Code declares that, "The provisions ol this chapter shall in all cases be construed as remedial and not penal."

Without deciding whether or not we can take judicial notice ot the ingredients or constituents which compose the "essence of cinnamon," we certainly can take such notice of the meaning of the words used in the English language, and therefore we judicially know the meanings and definitions of the words "essence" and "cinnamon." The latter is a bark, and Webster defines the former to be (1) "That which constitutes the particular nature ot a being or substance and distinguishes it from all others; (2) Formal existence; * * *

(6) Constituent substance, as, the pure essence of a spirit;

(7) The predominant qualities or virtues of any plant or drug, extracted, refined or rectified trom grosser matter; or more strictly, a volatile essential oil, as the essence of mint." Take whichever of these definitions we may of the words "essence"* and connect it with the word "cinnamon," and the necessary conclusion is that the "essence ot cinnamon" is a "preparation or mixture." It is immaterial what are the ingredients of the preparation or mixture, or by what name it is known, or whether it is patented or not, if it will produce intoxication the sale ot it is prohibited by the statute. The "essence of cinnamon" then, being a preparation or mixture, the only question for this Court to decide in this case is, whether or not the evidence was sufficient to warrant the jury in finding that it would produce intoxication, or rather whether the jury, upon any reasonable view of or deductions irom the evidence certified, was justified in finding that the particular "essence of cinnamon" sold by the defendant in this case did produce intoxication. If we can not judicially know that the "essence of cinnamon" may produce intoxication, we certainly can not judicially know that it may not do so. The question therefore is one of fact purely. In cases of this character the rule is well settled in this State, that the jury are the peculiar judges, and their verdict ought not to be set aside even by the trial-court, unless there is a plain deviation from right and justice, not in a doubtful ease, or merely because it is one in which the court, if it had been on the jury, would have found differently, and this rule opeiates with increased force in an Appellate Court when it is asked to set aside a verdict which has been approved by the trial-court. State v. Cooper, 26 W. Va 338; Miller v. Insurance Co., 12 W. Va. 116; State v. Thompson, 21 W. Va. 741.

According to these principles can this Court properly interfere with the verdict and judgment of the trial-court in this case? The sale...