State v. Smith

• Decision Date: 20 December 1895
• Citation: 23 S.E. 449,117 N.C. 809
• Court: North Carolina Supreme Court
• Parties: STATE v. SMITH.

23 S.E. 449

117 N.C. 809

STATE

v.SMITH.

Supreme Court of North Carolina.

Dec. 20, 1895.

Intoxicating Liquors — Sale — Sufficiency of Evidence.

In a prosecution for sale of liquors, a witness testified that he sent for whisky by defendant; that he told him to bring him some liquor; that he forgot how much money he gave him, but defendant brought him a quart of whisky; and that he paid him nothing for bringing it. Held, that the evidence showed a sale by defendant.

Appeal from superior court, Cherokee county; Graham, Judge.

J. H. Smith was convicted of selling liquors without a license, and appeals. Affirmed.

A witness on behalf of the state testified: "I sent for whisky by defendant. I told him to bring me some liquor. I forget how much money I gave him, but he brought me a quart of whisky. He would be gone two or three hours. I never asked him where he got it. I paid him nothing for bringing it. This was in this county, within two years prior to this time." The state rested, and defendant introduced no testimony.

Ferguson & Ferguson and Ben. Posey, for appellant.

The Attorney General, for the State.

AVERY, J. The defendant took the money of the prosecuting witness, and furnished him whisky for it. Prima facie that was a sale, whether the spirits was delivered in 10 minutes or 10 hours. Black, Intox. Liq. § 503. The burden was upon the defendant to show that he had license if he proposed to rely upon the defense that the sale was authorized by law (State v. Emery, 98 N. C. 668, 3 S. E. 636; State v. Morrison, 3 Dev. 299; State v. Wilbourne, 87 N. C. 529); and therefore proof of the sale raised a presumption that it was illicit. Where a person is shown to have sold spirituous liquors contrary to a local prohibitory law, or in such quantity and manner, or at such place, that the sale would be unlawful without license, the burden is upon the accused, if he would excuse the act on the ground of necessity, to make good the defense. 2 Whart. Or. Law, § 1506, p. 348, note 5; State v. Farmer, 104 N. C. 887, 10 S. E. 568; State v. Brown, 109 N. C. 807, 13 S. E. 940. There was no testimony tending to show that the defendant was acting merely as agent for the purchas er, or in any other capacity than that of seller. Proof that he was acting as agent of one who furnished the spirituous liquors would not have excused him, but would have shown him guilty as principal. 2 Whart. Cr. Law, § 1504.

It is true, as insisted by the defendant's counsel, that this court has never...