Edgar v. State, 37 Ark. 219 (1881)

May 1881 · Arkansas Supreme Court

37 Ark. 219

Edgar v. The State.

1. Eiqtjor: Selling to minor under mistake of his age.

It is no excusé or justification to one who sells liquor to a minor-without the written consent of his parent or guardian, that both he and the minor believe at the time that the latter is of age. u e sells at his peril.

2. Same : Selling to minor, onus as to parent's consent.

The state need not prove l hat a sale ol liquor to a minor was without. the written consent of the parent or guardian, The burthen of proving such consent is upon the seller.

3. Same : Same. Evidence of minor's age.

In a prosecution for selling liquor to a minor, the minor may testify - of his age from an entry of his birth in the family Bible without producing it, or from any other source of information.

• 4. Samis. Instruction that whisky is intoxicating. Judicial notice.

An instruction in a prosecution for selling whisky to a minor, that whisky is an intoxicating liquor, without proof of it, is not objectionable. It is a fact of common intelligence and needs no proof.

APPEAL from Craighead Circuit Court;

Hon. L. L. Mack, Circuit Judge.

STATEMENT.

James T. Edgar was indicted and tried in the Craighead ’Circuit Couftat the March term, 1881, for selling liquor to a minor without the written consent of his parents or guar■dian.

J. T. Reynolds, the minor, testified upon the trial that Edgar sold him a half pint of whisky on the thirteenth day -of August, 1880, at his saloon in Craighead County. Witness was not 21 years- of age until the twenty-sixth day of August, 1880. Edgar refused to sell him the whisky until •witness told him he was of age on the sixth of August, 1880, which he really believed to be true, until -he afterward referred to the register of births in the family Bible, and found that his birth day was the twenty-sixth instead of the * sixth of August.

The defendant objected to the admission of the evidence in reference to the family Bible, but his objections were ■ overruled and he excepted.

The court instructed the jury, among other things, that •■“whisky is an intoxicating liquor,” to which the defendant excepted. He was found guilty, and after motion for new Trial overruled, filed his bill of exceptions and appealed.

W. íl. Cate and U. M. Rose, for appellant.

The evidence of the prosecuting witness was insufficient "to sustain the verdict. Bishop on !Stat. Crimes, see. 1021 ; State v. Kalb, 14 Ind., 403 ; Rincuranv. State,24 Id., 80 lb.. 85 ; jfyrown r. State Id. 113.

It was not shown that the person who made the entries-in the family Bible was dead at the time of trial; consequently the Bible itself would not have been admissible in» evidence. Greenleaf v. R. R. Oó. 30 Iowa, 301.

The testimony as to what the Bible contained, was secondary, and wholly inadmissible, unless it was shown that the original was lost or destroyed. Ryerson v.- Grover, 1 GoxH. J.L. 448; Greenleaf v. R. R. Go. 30 Iowa 301. Curtis v. Patton 6 Serg. and R. 135 ; Blackburn v. Crawford, 3 Wall. 175.

The State should have shown that Eeynolds had no order from his parent or guardian ; it was a necessary part of the offense, and whether Eeynolds had a written permission or-not, was peculiarly within his own knowledge, and if he had, it was under his control, and he should have shown it. State v. Bvans, 5 Jones, (iY. G.) L. 250.

In all cases on this subject heretofore decided in this Court, the State has duly proved that no written order had been given. Cloud v. Slate, ArJc. Hale v. Statey 36 Ark. 150...

The term “ardent, vinous, malt and fermented liquors” being descriptive, must be proved as laid in the indictment, and the whisky sold, shoüld have been proved to have been ardent, vinous, malt and fermented. For where one substantive offence is charged with different descriptions, it must be proved to possess each quality named.. 1 Green-leaf, sec’s 64 and 67. Descriptive allegations- must be proved as laid. 1 Bishop, - Grim. Pro., sec’s- 486 to 488 ; Gommonwealih v. Simon, 4 Gray, 18.

G. B. Moore, Attorney-General, for appellee :

The evidence of witness, being uncontradicted,, was sufficient, the jury being the judges of the evidence..

It is not the minor who is to have the written, consent,. but it is the whisky seller who is forbidden to sell without it, and it was the seller’s duty to prove such consent.. Appellant sold to the minor at his peril. Redmak v. State, 36 Arle., 58.

The State made aprima facie case, and as there was no rebutting evidence this was sufficient. Hale v. State; 36 Ark., 150.

“Whisky is intoxicating” (most courts know this judicially), and the evidence that the defendant sold a pint of whisky sufficiently sustains the indictment.

Harrison, J.

i. liquor; »toSeminor ■mistake of •liis age.

It was no justification or excuse for the defendant that when he sold the liquor, both he and the minor believed that the latter was of age. He sold it at his ° peril. Redmond v. The State, 36 Ark., 58; Crampton v. The State, ante.

•2. onus as •consent.*8' ^ was n0^ necessary for the State to prove that the sale was not by the written consent of the parents or guardian of the minor; the burden of proving such consent was on the defendant. If given, the proof of it was peculiarly within his power.

Greenleaf says: “When the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or crimiual prosecutions for a penalty for doing an act which the Statutes do not permit to be done by any person, except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great.” 1 Green. Ev., sec. 79. And Bishop in his work on statutory crimes, says : & •$ ■& # •“If the law forbids the mass of the community to sell intoxicating liquors, but grants license to some particular in_ ■dividuals to sell it, then if some one person is indicted for making an unlicensed sale, the presumption that what is common in general belongs likewise to the particular stands as jprima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further consideration, that since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the or'derly and convenient administration of justice is promoted, while no harm is done to the individual, by casting the burden on him.” And he further remarks : “The question relates, not only to the want of a license from the public author ities, but the want also of the consent of parents, guardians .and the like.” Bish. Stat. Crimes, secs. 1051, 1052; 1 Wharton Ev., sec. 368; Roscoes Crim. Ev., 79; Hopper v. The State, 19 Ark., 143; Farrall. The State, 32 Ala , 557.

The case otFarrall v. The State, is directly in point. It was an indictment for selling liquor to a minor — a student at school — without the consent of his parent or guardian, and it-was held that the burden of proving such consent was •on the defendant.

Evidenee of miab As the person to whom the liquor was sold, was a petent witness to prove his own age, there could be no objection to his stating that he derived his knowledge of ■day on which he became of age from an entry of his birth in the family Bible, or from any other source of information. His evidence as to that fact, was, as a matter of course, but hearsay.

Judicial “y^ntoí-As every person of common intelligence knows that * ° whisky is an intoxicating liquor, and there was no question, and could be none, as to that fact, the struction that it was so was unobjectionable.

The judgment is affirmed.