State v. Chandler

15 Vt. 425 | Vt. | 1843

The opinion of the court was delivered by

Hebard, J.

The question, in this case, is, had the respondents a right to the charge requested ? The court, instead of charging as requested, told the jury that “ if they ‘ believed the testimony, they should find the respondents 'guilty.”

This charge has, at least, the merit of being short, and so plainly stated that the jury could not misunderstand it; and, if correct, its brevity is a defect that may easily be excused. The obvious exposition of the charge is, that the jury were told that, although all the points raised by the respondent’s request were found to be proved, it would avail them nothing, the law being otherwise, — provided the main facts were proved by testimony which they believed. And it was as well, for the purpose of guiding the jury, as if the court had ■enumerated the several points, and given the law, in detail, as .applicable to each.

The first point made by the respondents in their request to the court is, perhaps, the one of the most importance, and the one that has been mainly relied upon in argument» But we are. not disposed to put that construction upon the statute which they have contended for.

Section first of chapter 83 of the Revised Statutes makes it unlawful for any person “ to sell any spirituous liquors ” in a less quantity than 20 gallons, without a license. The 14th section of the same chapter provides, that “ any person who ‘ shall deal in the selling of foreign or domestic distilled spirit- ‘ uous liquors, in a less quantity than 20 gallons atone time, ‘ shall be deemed to be a retailer within the meaning of this ‘ chapter.” The chapter is entitled “ of licenses to retailers, ‘ inn-keepers, and victualling-houses.” The first section of the chapter defines the act that is unlawful, if done without a license; — and that is, “ to sell any foreign or domestic dis- ‘ tilled spirituous liquors.” This being the act that is forbidden to be done, of course for the doing of this the penalty is incurred. It is not any succession of acts, of a similar character, that constitutes the offence. The 14th section defines who are retailers ; and by “ dealing in the selling,” the same is meant as in the first section, by the expression “ to sell.”

But there is another view of the case, still more decisive» The 26th section of the same chapter provides, that “ if any ‘ person shall be guilty of more than one distinct offence ‘ prohibited in either of the three preceding sections, he may ‘ be prosecuted and subjected to the penalties for all such ‘ distinct offences, at the same time.” There would be a difficulty in understanding when a distinct offence had been committed, or how many had been committed, if it required any number, or succession of acts of selling, to constitute a distinct offence. The result, therefore, must be, that the offence is manifest by the proof of a single act of selling.

The next three points in the respondent’s request to the court to charge the jury, relate, substantially, to the same thing,- and may all be disposed of together.

The purpose for which the liquor is bought, or what may be the intention of the buyer, is not taken into the account by the statute in defining the offence; nor are we to suppose that the legislature intended to discriminate in relation to the ultimate destination of the article. The offence' does not consist in buying, but in selling ; of course, the motive and intention of the buyer, when regulating the policy of the law, as to the seller, was not regarded. The same remarks may apply to the condition of the liquor when bought. If it makes no difference for what purpose it was bought, it can make no difference whether the liquor was in a condition that it could have been drunk.

The remaining point for consideration is the exception in the statute in relation to apothecaries. It is not necessary here to determine what should have been the ruling of the court upon this point, provided the respondents had shown themselves to be apothecaries. It is enough for this purpose to say that the case does not show the respondents to have been apothecaries, in the sense in which the term is used in the statute. The mere keeping, and retailing, some of the articles which an apothecary may sometimes have occasion to use, does not, necessarily, constitute an apothecary within the meaning of the statute. It is, then, obviously used in a professional sense, combining, with the other parts of his business and occupation, that of skill and judgment in the preparation of his medicines. It is apparent, from the whole case, that the respondents were apothecaries in no sense, only that they, as is usual for most merchants, kept some of the articles which helped make up the list of medicinal commodities. But the exception in the statute is confined to the “ preparation of medicines, to be administered to sick or diseased persons only.”

There is a point made here by the counsel for the respon-0 dents, which is not presented by the bill of exceptions, in relation to a supposed variance between the proof and tho indictment. How far there was a variance, or whether, in fact, there was any, does not appear. No exception was taken on that ground; nor was the attention of the court called to that subject. And we, now, sitting as a court of errors, can only look into so much of the case as is presented to us by the record. The o.nly charge of the court which has been shown to us, was in relation to those particular requests of the respondents. The record purports to recite so much of the testimony as related to those points; and we are bound to presume that, if there had been any defect in the proof, the attention of the court would have been called to it. Rut as the case does not pretend to detail all the timony, we could not, with propriety, make the desired examination, to see whether the proof met, and sustained, the allegations in the indictment.

Judgment that the exceptions be overruled, and that judgment be rendered upon the verdict for the penalty of the statute.