State v. Simmons

• Decision Date: 31 January 1872
• Citation: 66 N.C. 622
• Parties: STATE v. ALFRED SIMMONS.
• Court: North Carolina Supreme Court

66 N.C. 622

STATE

v.ALFRED SIMMONS.

Supreme Court of North Carolina.

January Term, 1872.

1. Two persons may be charged in the same bill of indictment with retailing contrary to the Statute, and one of them may be convicted, and the other one acquitted.

2. When one contracts to sell a gallon of spirituous liquor, and a portion, viz: less than a quart, is delivered at the time of the contract of sale, and afterwards the money is paid and three quarts delivered, and subsequently the remainder of the gallon, held that this is not a violation of the Statute, unless it was artifice to evade the law, and such intent was a question of fact which ought to have been submitted to the jury.

This was an indictment for retailing contrary to the Statute, tried before Mitchell, Judge, at Fall Term 1871, of Caldwell Superior Court.

The indictment charged a sale by both of the defendants. There was no evidence against the defendant Bradley, and a verdict was returned in his favor. The testimony against Simmons, the other defendant was, that he had a quantity of spiritous liquors in a wagon near the town of Lenoir.

A witness stated that he went to this wagon and defendant had brandy in a barrel. Witness agreed with him for a gallon, defendant then delivered to him a pint. No money was paid at that time, and the gallon was not measured and set apart. He further testified that on the day after he received the pint he went again to the wagon of the defendant, and paid for the gallon, the defendant at that time delivered to him three quarts, and afterwards on the same day another pint so as to make up the gallon. Defendant Simmons had been indicted at a previous term of the Court for selling the pint first spoken of, and had submitted.

Defendant's counsel insisted that as the indictment charged a pint sale, and there was no proof against Bradley, that there was a fatal variance, and that the facts proved by the State's witness did not make out a violation of the Statute.

His Honor charged that one of the defendants might be convicted and the other acquitted, and that if the jury believed the witness, Simmons was guilty.

Verdict of guilty. Judgment and appeal.

At torney General and W. P. Caldwell for State .

Folk for defendant .

BOYDEN, J.

This was an indictment for selling liquor contrary to the Statute, and it was alleged that Simmons and Bradley were both guilty as the indictment charged a sale by Simmons and Bradley, but it turned out in the evidence...