State v. Walker

• Decision Date: 06 May 1889
• Parties: STATE v. WALKER.
• Court: North Carolina Supreme Court

9 S.E. 582

103 N.C. 413

STATE v. WALKER.

Supreme Court of North Carolina

May 6, 1889

Appeal from superior court, Beaufort county; MACRAE, Judge.

J. H Small, for appellant.

The Attorney General, for the State.

DAVIS J.

The defendant was indicted under section 1077 of the Code. The indictment contained two counts,--one for selling, and the other for giving, intoxicating drinks and liquors to one Fred Gardner, who was under 21 years of age, and unmarried. The evidence was, in substance, that Fred Gardner, an unmarried youth, about nine years of age, was the son of John Gardner that John Gardner sent Fred to one Bergeron, who was admitted to be a liquor dealer, and for whom Walker was clerk, for whisky, and that Walker delivered it to Fred, for his father by the direction and upon the order of the father. The son testified, among other things: "I do not drink. The defendant knew that all the liquor was for papa, and I did not buy for myself. I was messenger for papa," etc. The father testified, in substance, that he sent his son Fred either with an order or the money, for whisky, and that it was for his (the father's) own use, and that prior to his instruction to the defendant he had refused to send him whisky by the son. The defendant asked the court to instruct the jury: "(1) That if the defendant knew the liquor was for the father, and not for the minor, and that the minor was only a messenger for the father, defendant is not guilty. (2) That the father had the right to use his son as a messenger to carry liquor to him. (3) That if the father purchased liquor for himself, and the defendant knew this, under the facts as testified in this case, it would be a sale to the father, and not to the son, and defendant would not be guilty." These instructions were declined, and "the judge instructed the jury that if they believed the evidence the defendant was guilty." Defendant excepted. There was a verdict of guilty, judgment, and appeal.

We are unable to see how this, upon the facts stated, can be regarded as either a sale or a gift to the minor. It was not a gift to anybody. It was a sale to the father, and the son was only a messenger. It was not a sale to the son. The cases of State v. Lawrence, 97 N.C. 492, 2 S.E. Rep. 367 and State v. McBrayer, 98 N.C. 619, 2 S.E. Rep. 755, relied on by the attorney general, are not applicable to this case. In those cases the sales or gifts were made to...