5 W. Va. 524 | W. Va. | 1872
The only error complained of in this case, is the ruling of the court below on the defendant’s motion to
The appellant was indicted for selling spirituous liquors, &c. without a license. It appears that at the time of the alleged sale, he was a regular druggist, living and doing business in the town of Point Pleasant, in Mason County. By the 4th section of chapter 32 of the Code, p. 203, druggists are authorized to sell, in good faith, for medicinal or manufacturing purposes, alcohol, spirituous liquors and wine. But in any prosecution against a druggist for selling such without a license, “ if a sale be proved, it shall be presumed that such sale waa,?n violation of the section, unless the contrary be showm’T
In/'ímis case it is not claimed that the appellant, at the tifee of the alleged sale had any license to sell spirituous liquors, &c., and a sale having been distinctly proved on the trial, the presumptions of the law arose against him, and it thereupon devolved on him to repel such presumptions by showing the bona fides of the transaction. Does it clearly appear from the record that he did so on the trial ? Whether he did so or not, was a question of fact to be determined by the jury, and in their judgment he failed to show the good faith of the sale, and hence the verdict was against him. And the question now is whether it was warranted by the testimony, or rather whether it was plainly against it.
It appears that only two witnesses were introduced on the trial. One was on behalf of the state, and proved that he went to the appellant’s drug store, in Mason county, and told him he was sick and wanted some whiskey, and upon being asked by the appellant what was the matter, he replied he had the “ belly-ache.” Whereupon, the appellant mixed some whiskey and ginger in a glass and gave it to the witness, who drank it and paid appellant for it. That the whiskey, witness said, was very hot with ginger, and that at that time, the whiskey shops were all closed^ Also, that he had got whiskey there several times before, but that it was always mixed with medicine, and always got for medicinal purposes.
The other witness was introduced on behalf of the appellant, and proved that he was a regular druggist, and made it a part of his business to fill prescriptions for physicians, and
Under this state of facts, I do not think we can, with propriety, say the verdict of the jury was clearly unsupported by the testimony, and ought therefore to be set aside. It will be observed that the witness for the state, although he says he told the appellant he was sick, did not state that he was in fact sick, nor that there was no understanding between him and the appellant that he should feign or represent himself to be sick, for the purpose of procuring the whiskey, in violation of law ; and further, that he did not call for medicine or for ginger, but for whiskey only, and applied to the druggist only, because the whiskey shops were then closed.
The jury, it would seem, came to the conclusion, that the sickness of the witness was probably feigned (which was understood by the appellant) and used as a pretext for procuring and selling whiskey in violation of law, and in my view, it cannot be said such a conclusion is wholly unwarranted by the testimony.
The judgment must therefore be affirmed with costs and damages.
Judgment affirmed.