State v. Poteet
| Citation | 86 N.C. 612 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 28 February 1882 |
| Parties | STATE v. HENRY POTEET. |
INDICTMENT tried at Spring Term, 1882, of BURKE Superior Court, before Eure, J.
The defendant was charged with selling spirituous liquor by a measure less than a quart in violation of the act of 1874-'75, ch. 39.
The case was submitted to a jury, and the only evidence offered before them was the testimony of Laban Shufing, who testified that the defendant owed him one dollar and twenty-five cents; that about a year before the trial, he went to defendant to buy some whiskey, and defendant told him, he could not sell less than a quart, but that he (the witness) might go to the barrel and draw any time when he pleased, until he was paid the one dollar and twenty-five cents; that he took the glass and drew him a drink then, and when he wanted a drink, for two or three weeks, he would go and draw his drink from the barrel until he considered he was paid the one dollar and twenty-five cents, and he received the drinks in payment of the said amount; and he and the defendant had no other settlement.
The court charged the jury that if the transaction between the defendant and the witness was as detailed by the witness, and the drinks of whiskey were received in payment of one dollar and twenty-five cents, the defendant was guilty.
To this charge the defendant excepted, and then asked the court to charge the jury, that the act of the legislature under which the defendant was indicted had been repealed by section 31, chapter 116, of the acts of 1881, and by the ““prohibition act” of 1881, ch. 319.
The jury found a verdict of guilty, and the defendant appealed from the judgment pronounced.
Attorney General, for the State .
Mr. S. J. Ervin, for defendant .
The first exception taken by the defendant to the charge of the court, was, that according to the evidence there may or may not have been a sale, and that only leaving the credibility of the witness to the jury was error. We cannot give our assent to this position. The construction of a written contract is purely a matter of law, in all cases where the meaning and intention of the parties are to be collected from the instrument itself, but if the contract be verbal and the parties dispute about the terms, or the terms are obscure, equivocal or uncertain, it is for the jury to find not only the terms but their meaning; but where there is no dispute about the terms and they are precise and explicit, it is as much a question of law, as the construction of a written contract. Sizemore v. Morrow, 6 Ired., 54; Festerman v. Parker, 10 Ired., 474, Young v. Jeffreys, 4 Dev. & Bat., 216.
There is no dispute about the facts of this case. There was nothing to be left to the jury but the credibility of the witness. Whether there was a sale of the whiskey by the small measure was a question for the court, and we think the ruling of the court was correct.
The instruction given the jury by the court is fully sustained by the decision of this court in State v. Kirkham, 1 Ired., 384, the facts of which were, that the defendant was applied to by the prosecutor to purchase some spirituous liquor; the defendant told him he could not sell less than a quart; the prosecutor 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. During that day the prosecutor took three half pints, and that some twelve months or more thereafter he got the other half pint and paid for the quart. It was held that this was a violation of the act of the legislature, prohibiting the sale of spirits by the small measure without a license.
Our case is distinguishable from the case of State v. Bell, 2 Jones, 337, and State v. Simmons, 66 N. C., 622. In the former, there was a sale of a quart of spirituous liquor, under an agreement that the seller was to retain it in a scparate vessel and the buyer to have access to it when he pleased, under which agreement the buyer drank the whole at various times; and in the latter, the contract was for a gallon of spirits--a portion less than a quart was delivered at the time of the sale, and afterwards three quarts were...
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...... paid into the hands of the proprietor, but it will be. equivalent if it be deposited for him in a place of his. appointment." State v. Kirkham, 23 N.C. 384;. State v. Bell, 47 N.C. 337; State v. Simmons, 66 N.C. 622; State v. Poteet, 86 N.C. 612; State v. Taylor, 89 N.C. 577; 1 Mechem on. Sales, § 1. This learned writer says, in section 1: "The. essential elements here involved are that there must be (1) a. transfer, of (2) the general or absolute title, to (3) a. specific chattel, for (4) a price in money or a ......
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