State v. Whisenant

• Decision Date: 09 December 1908
• Citation: 149 N.C. 515,63 S.E. 91
• Parties: STATE . v. WHISENANT.
• Court: North Carolina Supreme Court

63 S.E. 91

(149 N.C. 515)

STATE .

v.WHISENANT.

Supreme Court of North Carolina.

Dec. 9, 1908.

1. Intoxicating Liquors (§ 169^*)—Offenses —Statutes—Construction.

To convict of violating Revisal 1905, § 3534, providing that a person who shall unlawfully procure and deliver intoxicating liquor to another shall be the agent of the seller of the liquor and shall be guilty of a misdemeanor, it is necessary to show that the sale by which liquor was procured was illegal, and the statute does not apply where the Sale was not illegal, or where the legislation could not apply, and as to such cases the general doctrine obtains that in a sale of intoxicating liquor, where one who acts solely as agent of the buyer, having no interest in the liquor and taking no part in the sale as seller, nor as his agent or employe, does not violate the law.

[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 169.*]

2. Intoxicating Liquors (§ 240*)—Statutes —Offenses—Evidence—Verdict.

Where, on a trial for selling intoxicating liquor, the evidence for the state showed that accused had sold cider, and had on one occasion sold whisky to prosecutor, and accused showed that he had, at the request of prosecutor, ordered whisky from a wholesaler in a sister state, that the prosecutor had given accused the exact cost of the liquor ordered, and that the liquor had been delivered to prosecutor without profit to accused, and the evidence did not show that_ the sale by the wholesaler was illegal, a verdict reciting that accused was not guilty as to retailing cider or liquor, but guilty as to ordering liquor for prosecutor, operated to acquit accused of retailing either liquor or cider, except in so far as the order sent for prosecutor to the wholesaler established a case, and the court could not, on such verdict, render a judgment of conviction of a violation of Revisal 1905, § 3534; the statute being inapplicable.

[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 240.*]

3. Criminal Law (§ 881*)—Trial—Verdict —Sufficiency.

A verdict is not bad for informality or errors in language, provided it can be seen what is intended, but must be reasonably construed, and cannot be avoided except from necessity.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2089; Dec. Dig. § 881.*]

4. Criminal Law (§ 890*)—Trial—Verdict-Amendment by Court.

Where a verdict operated as an acquittal of accused, the court could not, after the discharge of the jury, amend it, in a matter of substance, to the prejudice of accused.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2111; Dec. Dig. § 890.*]

Appeal from Superior Court, Burke County; Ferguson, Judge.

James Whisenant was convicted of selling intoxicating liquors, and he appeals. Reversed.

Jim Ramsey, for the state, testified that he had bought such liquor, etc. There was dispute and contradictory testimony as to whether the cider sold was intoxicating. On cross-examination the witness denied having gotten defendant to order any whisky for the wit ness, and stated that the transactions between them were sales outright. Defendant, a witness In his own behalf, testified that he had never sold Jim Ramsey any intoxicating liquors of any kind; that on one occasion said Ramsey had requested witness to order some whisky for him with an order witness was sending for himself to a wholesale grocery house in Knoxville, Tenn.; that Ramsey gave witness $1.66, the exact amount of the cost of what he desired to get, and witness wrote the order that night and sent it off the next morning after receiving the money, sending for some at the same time for himself; that witness suffered from asthma and took whisky for it under the advice and prescription of a regular physician. The judge charged the jury, who rendered a verdict to the clerk, which seems to have been without objection. The verdict so rendered was in form as follows: "Not guilty as to retailing cider or liquor, but guilty as to ordering one gallon of liquor for Ramsey." The jury having, it seems, been discharged, the court ordered an entry made as follows: 'The jury for their verdict say they find defendant, James Whisenant, guilty. The jury further say they find defendant not guilty of selling intoxicating cider, and not guilty of selling liquor, other than the gallon ordered and delivered to defendant, Ramsey, as testified to by defendant, James Whisenant." There was judgment on the verdict, as entered by the judge, and defendant excepted and appealed.

J. M. Mull and J. T. Perkins, for appellant.

Hayden Clement, Asst Atty. Gen., for the State.

HOKE, J. The laws of this state have thus far not made the purchase of whisky a criminal offense, when it is bought by the purchaser himself and for his own use. The statute which most nearly approaches this is section 3534 of Revisal of 1908, which makes it criminal for one to procure whisky for another by reason of an unlawful sale, and constitutes such a...