21 S.E. 194 | N.C. | 1895
The defendant was indicted for unlawfully selling spirituous liquors on Sunday without prescription, etc.
The Code, sec. 1117, enacts: "If any person shall sell spirituous or malt or other intoxicating liquors on Sunday except on the prescription of a physician, and then only for medical purposes, the person so offending shall be guilty of a misdemeanor."
These are direct and unambiguous words. Two witnesses for the State testified that they drank of bottles of brandy peaches sold by the defendant on Sunday, and were made drunk thereby. The defendant testified in his own behalf that he sold brandy peaches without prescription, etc.; that he kept them in stock and sold them as groceries, as food; that the liquid was syrup and not brandy. His Honor charged the jury that if they believed the evidence the defendant had sold the articles on Sunday without prescription, etc., and the question of the defendant's guilt or innocence would depend on whether the articles sold were spirituous and intoxicating liquors, as described in the State's evidence; that if they were satisfied beyond a reasonable doubt that the liquor in which the peaches were preserved in the bottles sold was brandy or other liquor, and the same contained alcohol in sufficient quantities to make one drunk, when freely used, they would render a verdict of guilty, otherwise not guilty. *599
The whole evidence being before the jury, under the above charge, they necessarily had to determine whether the liquid in the bottles was brandy or syrup, as claimed by the parties, without other instructions.
His Honor properly gave the defendant the benefit of going to the jury on the question of the quality or character of the liquid drunk from the bottles, although this Court has held that when the liquid, by common knowledge and observation, is intoxicating, the court may so declare; but if it is doubtful whether or not it be so, then the question of fact is raised for the jury. S. v. Giersch,
Affirmed.
Cited: S. v. Burton,
