State v. Smith , 51 Kan. 120 ( 1893 )

The opinion of the court was delivered by

Horton, C. J.:

The errors alleged in this case concern the giving and refusing instructions to the jury. The instructions given are criticised, and the statement of the trial court “that a sale in law is the transmutation of personal property from one person to another for a price” is urged as being inapplicable and unintelligible. The court evidently used the word “transmutation” as “change” or “exchange.” The word “transmutation” is sometimes defined as' “the change of one species into another; the change from one nature, form or substance into another.” Taking all the instructions together, we perceive no good reason why the word “transmutation,” as used, should have misled the jtíry.

The most serious matter urged is, that the trial court refused to give the following instruction:

“You are instructed that, if you find from the evidence that the defendant took money from another person for the purpose of purchasing intoxicating liquors from some third person, who had the same for sale, and in whose sales defendant had no other interest than as a purchaser, and that the defendant did purchase the intoxicating liquors from such third person with the money received by him for that' purpose, and did deliver it to the person from whom he received the money, or placed it where it could be and was found by the person or persons for whom it was purchased, such a transaction does not constitute a sale by the defendant.”

The theory of the prosecution was, that Smith, in furnishing intoxicating liquor to Nash and bis friend, acted for himself only, or- for Durant, from whom he procured the liquor. The instructions of the court fully informed the jury that they could not find Smith guilty, as charged, unless he sold on his own account to Nash and his friend intoxicating liquor, or unless he acted as the agent of the owner of the liquor in selling the same. Smith was not found guilty by the jury upon the theory that he was simply the purchaser of intoxicating liquor from Durant, or that he acted merely as the agent of Nash and his friend in obtaining the liquor. We think, under all the circumstances of the case, the instructions given were sufficient and not misleading, and that no material error was committed in refusing the instructions requested. [The State v. Morton, 42 Mo. App. 64. See, also, § 410, crimes act, Gen. Stat. of 1889, ¶2550.)

The judgment will be affirmed.

All the Justices concurring.