53 S.E. 515 | N.C. | 1906
The State introduced Jim Ezzell, who testified that on Tuesday, 6 February, 1906, at the store of the defendant, in Lumberton, he purchased at two or three times a certain drink called "Phosphate," (781) or something of the kind; that it would take about a quart of this drink to intoxicate; that he paid 25 cents a quart for the liquid so purchased by him. On cross-examination he further testifies that he returned to defendant's Wednesday morning and offered to purchase more, but defendant declined to sell him any, telling him that he had understood that it was alleged that the "Phosphate" drink was intoxicating, and if so, he would sell no more of it, but would return it immediately to the maker; and he asked defendant two or three times on Wednesday morning to let him have more, but he refused. There was no evidence that defendant had ever sold any of this liquid except on the Tuesday named.
The State rested its case, and the defendant offered himself and other witnesses to show that the drink so called by him was purchased as a "soft drink" under a guaranty from the manufacturer that it was non-alcoholic and nonintoxicating, that at the time of the purchase the agent of the manufacturer furnished him with what purported to be a statement from the Commissioner of Internal Revenue, that it was nontaxable; that he purchased it in the full belief that it contained no alcohol; sold it so believing; that he received from the manufacturer the only purchase made by him on Monday, 5 February; only sales made by him were on Tuesday, 6 February, and having heard Tuesday night that it was charged that this "Phosphate," the name being given to it by the manufacturer, Burmanco, was intoxicating, he immediately closed it up and shipped it back to the manufacturer, having had it in his possession only one day, and refusing to make any sales after he was informed of the charge that it was intoxicating.
His Honor declined to admit this evidence, and the defendant excepted. Under the charge of his Honor the jury returned a verdict of guilty. From a judgment upon the verdict, the defendant appealed. (782)
It will be observed that the bill of indictment charges the sale of the intoxicating liquor to have been made "willfully and unlawfully." This language is not to be found in the statute, but this court has several times held that these words, or words of equivalent import, should be used in indictments for violating statutes *596
prohibiting, or making criminal the doing or omitting to do the acts described. In S. v. Simpson,
"According to all of our books, mistake of fact is quite different (787) in its consequences, both civil and criminal, from ignorance of law. There is no necessity, or technical rule of any sort, requiring it to be dealt with in any other way than is demanded by pure and abstract justice. . . . To punish a man who has acted from a pure mind, in accordance with the best lights he possessed, because misled — while he was cautious, he honestly supposed the facts to be the reverse of what they were — would restrain neither him nor any other man from doing a wrong in the future; it would inflict on him a grievous injustice, would shock the moral sense of the community, would harden men's hearts and promote vice instead of virtue." Bishop Crim. Law, 302. The proposition is thus stated: "A mistake of fact neither induced nor accompanied by any fault or omission of duty, excuses the otherwise criminal act which it prompts." Baron Parke says: "The guilt of the accused must depend on the circumstances as they appear to him." S. v. Turpin,
In Myers v. State,
In Com. v. Presby, 14 Gray, 65, it appeared that a statute made it the duty of a police officer to arrest any person found in the (788) highway in an intoxicated condition. The defendant, having made such an arrest, was indicted for an assault. To the suggestion that, in fact, the prosecutor was not intoxicated, the officer alleged that he honestly, and upon a well-grounded belief, thought that he was in such condition. The Court, by Hoar, J., said: "It is argued on behalf of the Commonwealth, that if Harford was not intoxicated, this statute affords no jurisdiction for his arrest, because the fact, and not a suspicion or belief, however reasonable, of intoxication, is requisite to such justification." After a review of the standard authorities on criminal law, the Court held that if the defendant "acted in good faith and upon reasonable and probable cause of belief, without rashness or negligence, he is not to be regarded as a criminal because he is found to be mistaken." The recognition of the principle "ignorantia facti" is essential to the safety of all peace officers who are required to make arrests for offenses committed in their presence. As said in "Neal v. Joyner,
We have so far discussed the question upon the theory that the proposed testimony would, if believed by the jury, justify the conclusion that the defendant was in fact ignorant of the presence of intoxicating liquor in the "Phosphate" which he sold, and that he was not negligent in that respect. It may be that his Honor excluded the evidence because of the opinion that, if true, it did not show that defendant was free from *601
negligence. It is clear that when the statute does not make knowledge or intent an essential element, the State may, upon proof of the commission of the act, rest and rely upon the presumption that knowledge is in accord with the fact. The duty then devolves upon the defendant to show the exculpatory facts. It would seem that if the testimony offered by defendant was found by the jury to be true, the conclusion that his conduct measured up to the standard of the ideal prudent man would reasonably follow. He proposed to show that the article purchased by him was known as "Phosphate" and came within the category known as a "soft drink"; that he had a guaranty from the manufacturer that it was nonalcoholic and nonintoxicating; that the agent of the manufacturer furnished him with what purported to be a statement from the Commissioner of Internal Revenue, that it was not taxable; that he purchased it in good faith and in the full belief that it contained no alcohol; that he received it on the 5th day of the month, sold only one day; hearing that it was charged to be intoxicating, he immediately closed it and shipped it to the manufacturer. It was in his possession only one day, and he refused to make any sales after hearing that it was charged to be intoxicating. What more could he have done? It may be suggested that he should have analyzed the phosphate. (790) We take notice of the fact that to do this required not only learning and skill in chemistry, but instruments and appliances not in common use. It is doubtful whether such an analysis could be made in the town or county in which defendant resided. In Byars v. City,
The testimony should have been received and, under proper instruction, submitted to the consideration of the jury. For the error in that respect, the defendant is entitled to a
New trial.