97 Ga. 690 | Ga. | 1896
The question, presented in this case is, whether or not '“lending” a pint of whiskey to another, to be consumed by the latter, who agrees to return, and does in fact return, to the “lender” another pint of the same kind of whiskey, it appearing that the transaction was made in the utmost good faith and with no criminal intention, amounts tO' a violation of a statute which forbids and makes penal the sale of spirituous liquors. We do not think it does.
There was no bargaining between them into which the element of trafficking entered. It was only an act of neighborly accommodation on the part of the lender, and it. would be a strain to call it a “sale.” It is quite true that, if one lets another have whiskey in exchange for goods, for1 services, or for any other thing of value — such, for instance, as the hire of a vehicle (Paschal v. State, 84 Ga. 326), the transaction could very properly be characterized as a sale of the liquor. But the present case is altogether different, for the reason that it had in it none of the elements which inhere in what is familiarly designated as “a trade.”
The trial judge was probably governed in the view he entertained of this case by the language of section 2125 of the code, which provides that a “loan” of goods for consumption, shall be construed to be a sale, and not a bailment. This section was specially designed for the protection of lenders as to the enforcement of their rights, and therefore very properly and wisely provided that transactions of this kind should take the legal character of sales, when any question arose as to the borrower’s liability to account for the goods. But this section has reference exclusively to civil remedies, and affords no basis for arriving at the meaning of a criminal statute, which, under all the rules, must be strictly construed. To pursue a different course in the present case would,’ in our judgment, directly contravene the legislative intention. We cannot believe
