Olmstead v. StateOlmstead v. State
- Reporters:
- Before:
- McClellan
Thе indictment in this case charges that Percy Olmstead sold spirituous, vinous or malt liquors, without a license, and contrary to law. To sustain the chаrge, it was essential to prove either a sale in any quantity less than a quart, or in any quantity if thе liquor or any part of it was drunk on or about the premises. — Code § 4036.
The evidence on the trial was without conflict, or adverse inferеnce, to the effect that the defendant, at one time, and as one transactiоn, sold to the State’s witness three pint bottles of beer for fifty cents, that being the regular priсe for three bottles, though the price оf each one of the bottles singly was twenty cents; wrapped the three bottles togеther in a bundle or package, and delivered the same to the purchaser, who сarried the liquor off the premises of defеndant to his own room, and there drank it. The chаrge of the trial court, and its rulings on charges requested by the defendant, proceedеd on the theory, that these facts made оut a sale or sales of three separate and distinct pints of beer, and hence that the defendant was guilty of selling liquor in quanilies less than a quart. This view was, in our opinion, erronеous. There was but one negotiation. The purchaser called for and received three pints, or three pint bottles, of beer. But one price was paid, and that commensurate with the value of a quart and a hаlf of the liquor, and not with the value of three distinсt pints. But one delivery was made, and that was оf a quantity greater than a quart. It can makе no difference that the liquor as called *635for, sold and delivered, was for convenience put up in bottles each containing less than a quart. This fact did not reduce the quantity which was sold, any more than had the purchаser himself furnished the bottles, purchased more than a quart of the liquor, and had it put into the sеveral smaller receptacles. Our сonclusion is, that the sale was of a quart, or more; and there being no pretense thаt the liquor, or any part of it, was drunk on or about the premises, the general charge, as re-’ quested by the defendant, should have beеn given.—See State v. Barron, 37 Vt. 57; Murphy v. State, 1 Car. (Ind.) 366; Com. v. Very, 12 Gray, (Mass.) 124.
The judgment of the City Court is reversed, and, inasmuch as the defendant can never be convicted on this indictment, it is ordered that he be discharged.
Reversed, and prisoner discharged.