LIQUOR SELLING.

WHAT CONSTITUTES A SALE.-Where defendant, having a license to sell not less than a quart, allows a witness to go to a barrel of whiskey when he pleases and draw a drink until he considers he has been paid a debt of $1.25, he is guilty of selling by the measure less than a quart. Poteet, 86-612.

A statute made it a misdemeanor to sell liquor within four miles of a certain locality, and defendant who had a still without the territory agreed with a party within the territory to sell him liquor, which was also delivered within the four miles: Held, that there was a sale within the four miles, and the defendant was guilty. Sykes, 104-694.

A club distributed liquors which were on hand to certain of its members who placed them in the hands of defendant, who was their steward, to be held by him, not for the club as a club, but for those individual members of the club as tenants in common, the share of each not being kept separately, but mingled in the same jars, casks and demijohns. From time to time, as each of those members wished, he obtained drinks from the defendant for himself and friends, paying therefor in money, or giving tickets to be afterwards redeemed in money, as near as may be the cost price of the drinks so furnished, and with the money the defendant from time to time replenished the stock of liquors: Held, that there was a sale. Following State v. Lockyear, 95-633. Neis, 108--787.

An agreement to deliver to the purchaser, from time to time, liquors in parts of a quart as he should call for them, with an engagement on his part to take, in the whole, a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantiy should be received, constitutes the seller a retailer by the small measure. Kirkham, 23 (1 Ired.), 385.

Defendant received at his home and place of business, in this state, in a territory within which the sale of whiskey is prohibited, an order from a person living in another state for a certain quantity of whiskey at an agreed price, and in pursuance of such order delivered the whiskey at a railroad station, also within the prohibited territory, for shipment to the purchaser at his home in the other state: Held, that the transaction was a sale of whiskey within the prohibited territory, and the question of interstate commerce does not affect the guilt or innocence of the defendant. Groves, 121-632.

A liquor dealer is criminally responsible for the unlawful sale by his agent of liquors to minors, though such sale may have been against his instructions and without his knowledge. Kittelle, 110—560.

TRICK-DEVICE.-A witness testified that he applied to defendant for liquor; that defendant said he could not get it unless he had a bottle; witness gave him a bottle and a small sum of money, and defendant went off, and in a short while returned with a bottle of whiskey, and said he charged a small sum for getting it, which was paid: Held, error to charge that if the jury believed the evidence the defendant was guilty, without further telling them to consider the bona fides of the transaction. Taylor, 89-577.

Defendant had a room in which was a table with a hole in the top, and a decanter of liquor and tumblers were on the table. Witness at sundry times went into the room, poured out a drink and took it, dropped a nickel in the hole for each drink, defendant being present and nothing said between him and the witness: Held, that the court properly charged that if the jury believed that the liquor belonged to defendant, and that he received the money for it, and that this was simply a device to evade the law, he would be guilty. McMinn, 83-668.

The prosecuting witness sent for some whiskey by defendant, gave defendant some money and told him to bring him some whiskey, which he did, and

nothing was paid defendant for bringing it: Held, that the transaction was prima facie a sale, and the burden was on defendant to show, if he could, that he was acting as the agent of the prosecuting witness, or that the sale was otherwise legal. Smith, 117-809.

CHALLENGE TO JUROR.-In an indictment for illegal sale of liquor, challenges for cause, in that the jurors belonged to the Anti-Saloon League, were properly disallowed, where the jurors had taken no part in prosecuting or aiding in the prosecution of the defendant. Sultan, 142–570.

REPEAL OF ACT.-Where an act of the legislature, forbidding the sale of liquor without license, repealed all laws in conflict with it, an earlier act forbidding such sale is repealed, but only as to offenses committed after the passage of the latter one, and as to all offenses committed before that time it has its contemplated force and effect. Scott, 142-602.

Chapter 497, Laws 1905, which enacted that the sale of liquor "shall be" prohibited in Union county, and provides that all laws and clauses of laws in conflict with the act are repealed, and that the act shall take effect June 1, 1905, is prospective in its operation and applies only to sales after June 1, 1905, and does not repeal chapter 434, laws 1903, prohibiting the sale of liquor in said county, as to sales made prior to June 1, 1905. Perkins, 141-797.

LOCAL ACT.-The act of 1901, chapter 350, making it unlawful to sell in Pender county any spirituous, vinous, malt, or fermented liquors, or any liquor of any name or kind which is intoxicating, is not affected by Code, section 3110, which provides that certain wines may be sold in bottles not to be drunk on the premises, nor is it repealed by the Watts law (Acts 1903, chapter 233), as its proviso withdraws all local acts from its operation. Piner, 141-760.

The legislature may pass laws prohibiting the sale of liquor within any designated territory. Piner, 141-760.

INTENT IMPLIED. In an indictment for unlawfully selling liquor, the law implies the unlawful intent from the doing of the act, which is prohibited, and it is no defense that the defendant did not in fact intend to violate the law. Piner, 141-760.

WINE JUDICIAL NOTICE.-Wine is an intoxicating liquor, and the courts will take judicial notice of the facts. Piner, 141-760.

In an indictment under the act of 1901, chapter 350, which prohibits the sale in Pender county of vinous or fermented liquors, it is not necessary for the jury to find that the wine sold was intoxicating. Piner, 141-760.

MISTAKE. A mistake of fact neither induced nor accompanied by any fault or omission of duty, excuses the otherwise criminal act which it prompts. Powell, 141-780.

In an indictment for retailing intoxicating liquor, evidence of the defendant that the article purchased by him was known as "phosphate" and came within the category known as a "soft drink," and that he had guaranty from the manufacturer that it was non-alcoholic and non-intoxicating, that the agent of the manufacturer furnished him with what purported to be a statement from the commissioner of internal revenue that it was not taxable, that he purchased it in good faith and in the full belief that it contained no alcohol, that he received it on the 5th day of the month, sold only one day, hearing it was charged to be intoxicating he immediately closed it and shipped it to the manufacturer, was competent to show that the defendant did not knowingly sell intoxicating liquor, that in doing so he was acting under a mistake of fact. Powell, 141-780.

INDICTMENT. In a bill of indictment for retailing intoxicating liquor, the words "willfully and unlawfully," or words of equivalent import, should be used, though such language is not found in the statute. Powell, 141-780.

KNOWLEDGE AND INTENT.-When the statute does not make knowledge or intent an essential element, the state may, upon proof of the commission of the act, rest and rely upon the presumption that knowledge is in accord with the fact. The duty then devolves upon the defendant to show the exculpating facts. Powell, 141-780.

PUNISHMENT. An exception that the punishment is in excess of that allowable upon conviction on the first count need not be considered, where the charge makes it clear the case was submitted to the jury upon only the last count, the others having been nol prossed. Sultan, 142-570.

For violation of a statute prohibiting the sale of spirituous liquors without a license, the person convicted may be imprisoned in the county jail with directions to be worked upon the roads. Farrington, 141-844.

INDICTMENT. An indictment, containing only one count, which charges several distinct offenses, is bad for duplicity, and a demurrer or motion to quash will be sustained, but if a nol pros. is entered as to all but one charge, and defendant goes to trial and is convicted the defect is cured. -684.

Cooper, 101

An indictment for selling "intoxicating liquors" is sufficient without specifying the particular kind of liquor. Parker, 80-439.

An indictment under Laws 1887, c. 135, sec. 35, for selling liquors in quantities greater than a quart should negative the facts that the spirits were of defendant's own manufacture, or were sold at the place of manufacture, or were the product of his own farm. Approving State v. Whissenhunt, 98682. Dalton, 101-680.

An act prohibiting sales within a certain distance of an academy is a public local statute, and need not be pleaded in the indictment. Wallace, 94-827.

Where a statute makes it indictable to sell liquor within two miles of a certain place, but the act is not to go into operation until an election is held, an indictment under the act must aver that such election has taken place. Chambers, 93–600.

Where a statute simply provides that it shall be "unlawful" to sell whiskey within a certain territory, a violation of its provisions is indictable at common law. If a statute prohibits a matter of public grievance, or commands a matter of public convenience, all acts or omissions in violation of its provisions being misdemeanors at common law, are indictable and punishable, if the statute prescribes no mode of proceeding. Parker, 91-652.

Where the indictment, under Laws 1885, c. 175, sec. 34, alleges that defendant sold by the measure "less than a gallon," and there is a special verdict finding that defendant sold "one gallon," the judgment must be arrested. The indictment is fatally defective for failure to specify the offense so as to show whether the charge is for a violation of the first or second paragraph of the act. Hazell, 100-471, and also Sutton, 98-474, same point.

If the legislature enacts a law in the terms of a former one, and at the same time repeals the former, this amounts to a re-affirmance of the former law, which it does not, in legal contemplation, repeal. Sutton, 100-474.

The indictment must allege a sale to some particular person or persons or to some person to the jurors unknown. Faucett, 20 (4 D. & B.), 108.

It is not necessary that an indictment for violating a local prohibitory act should refer to the statute. Snow, 117-778.

A reference to the wrong act in the indictment is immaterial and mere surplusage. Snow, 117-778.

An indictment charging the violation of a certain section of a statute need not specify that the act charged does not come within an exception created in a subsequent section of the same statute. Downs, 116-1064.

It is not necessary for the indictment to refer to the statute prohibiting sales within a certain distance of a church, since the statute is a public local one, of which the courts will take judicial notice. Downs, 116-1064.

Where the indictment charges a sale within two miles of "Bethel Methodist church in Macon county," and the special verdict describes the church as "Bethel church in Macon county," the variance is immaterial. Downs, 116

1064.

It is not necessary to specify the kind of liquor sold, as that is a matter of evidence. Downs, 116-1064.

An indictment need not aver that the liquors sold were not manufactured from fruit raised on the lands of the defendant. Burton, 138-575.

An indictment must negative the possession of a license. Holder, 133-709. An indictment for selling "by the small measure" is defective if it fail to contain the words "less than a quart." Shaw, 13 (2 Dev.), 198.

PRECISE DAY OF SALE NOT SHOWN.-A demurrer to the evidence on the ground that it was not shown upon what day in August preceding the sale was made properly overruled. Burton, 138-576.

KEEPING LIQUORS FOR SALE.-A statute providing that if any person "shall keep in his possession liquor to the quantity of more than one quart within said county it shall be prima facie evidence of his keeping it for sale," is not unconstitutional as an invasion by the legislature of the judicial department of the government, nor as depriving the defendant of the presumption of innocence. Barrett, 138-630.

The legislature has the power to pass statutes of local application regulating the liquor traffic and to prescribe rules of evidence applicable to charges for their violation. Barrett, 138-630.

A statute making the keeping of more than a quart of liquor prima facie evidence of keeping it for sale does not violate Article IV, sec. 1, U. S. Constitution, which prohibits any state from making or enforcing any law which denies to any person within its jurisdiction equal protection of the law. Barrett, 138-630.

In an indictment for keeping liquor with intent to sell, the keeping is an essential fact to be proved, and necessarily relevant, and the legislature, in giving additional intensity to the proof of a fact, as tending to prove the fact in issue, is acting within its power, and the courts can not undertake to fix the limit in respect to the quantity prescribed as the basis of the presumption. Barrett, 138-630.

An instruction that if defendant had whiskey in his possession he would be guilty of keeping it unlawfully under a statute making it unlawful to keep liquor for sale is erroneous. Blackman, 134–683.

A statute is not void because it makes an act lawful in itself prima facie evidence of a guilty intent. Barrett, 138–630.

SOCIAL AND LITERARY CLUBS.-The members of a duly incorporated social and literary club, but no other persons, were permitted to purchase from defendant, the steward of the club, meals, cigars and liquors, which were furnished by the club at a price fixed by its officers, sufficient to cover the cost but not for the purpose of profit: Held, that furnishing liquors to the members of the club under these circumstances was a sale. Lockyear, 95-633.

FORMER CONVICTION.-Selling the same glass of liquor may be a violation of both the state law and a town ordinance, where a license as required by both has not been obtained, and a plea of former conviction in the police court under the town ordinance can not be sustained on indictment in the state court. Lyttle, 138-738.

SELLING ON ELECTION DAY.-It is not unlawful to sell liquors on election day under acts 1901, c. 89, sec. 76. Edwards, 134–636.

CLERK IN DRUG STORE-OWNER NOT GUILTY.-Where a clerk in a drug store unlawfully sells liquor without the knowledge and against the orders of the owner the owner is not guilty. Neal, 133–689.

THREE PINTS-QUART.-Evidence of a sale of three pints at one time does not sustain an indictment for selling by a measure less than a quart. Holder, 133-710.

SPECIAL VERDICT MUST NEGATIVE LICENSE.-A special verdict which fails to find that the defendant did not have a license to sell is fatally defective. Bradley, 132-1060.

SELLING WITHIN PROHIBITED DISTANCE IN ANOTHER COUNTY.-Where a statute makes it unlawful to sell liquor within a certain distance of a place a person selling in another county, but within the prescribed distance, is guilty. Knotts, 131-705.

EVIDENCE MUST SHOW SALE TO PERSON NAMED.-Where the case on appeal states that the evidence was that defendant sold to "one of the witnesses for the state a gallon of whiskey," this does not sustain an indictment for selling to a certain person named in the bill. Tucker, 127-539.

BUSINESS MAY BE LEFT WITH AGENT.-One who has license to sell liquors may leave the business in the hands of an agent and leave the county for an indefinite time. McNeeley, 60-234.

DRINKS "CONTAINING ALCOHOL."-On indictment under a statute against selling "drinks containing alcohol" an instruction that the drink "must contain some appreciable amount of alcohol-such an amount as a man of ordinary sense, reason and judgment would say that it had alcohol in it," was not prejudicial to defendant. Parker, 139–586.

A statute making it unlawful to sell any drink "containing alcohol" is not repealed by a subsequent act prohibiting the sale of spirituous, vinous or malt liquors or "other intoxicating drinks" and repealing all previous statutes in conflict. Parker, 139-586.

POSSESSION OF CERTAIN QUANTITY.-Under a statute making the possession of more than two gallons of whiskey prima facie evidence that the person having that quantity in possession is engaged in selling, the legislature only intended to give the possession of more than two gallons evidential force on the charge of illegal sale, and did not intend to make the possession of such quantity of whiskey in itself a crime. McIntyre, 139–599.

WINE KNOWN TO BE INTOXICATING. It is not necessary that a special verdict should find that wine sold was intoxicating, since wine belongs to that class of liquors known to all men to be intoxicating. Piner, 141–760.

Where vinous liquors are specially mentioned in the act prohibiting the sale of liquors, it is not necessary for the jury to find that a gallon of wine sold was intoxicating. Piner, 141–760.

THE INTENT. The intention with which an unlawful sale of liquor was made is immaterial. Downs, 116-1064.

INCONSISTENT STATUTES.-Where two statutes are inconsistent and irreconcilable the last will prevail though there is no repealing clause. Monger, 111 -675.

ADVICE OF COUNSEL NO EXCUSE.-The unlawful sale of liquor is not excused by the fact that the defendant, acting under the advice of counsel, believed that the particular sale was not a violation of law. Downs, 116-1064.

TOWN INCLUDED IN PROHIBITED TERRITORY.-A law prohibiting the sale of intoxicating liquors within two miles of a certain church is valid, notwithstanding a part of the territory so specified is within the limits of a town whose charter had prior to such enactment empowered it to license liquor selling. Snow, 117—774.