State v. . McBrayer ( 1887 )

^* The opinion of the Court was filed at last term, but by inadvertence was not published in the Reports of the Decisions of that term. — REPORTER. (DAVIS, J., dissenting.)

(S. v. Wray, 72 N.C. 253, and S. v. Wool, 86 N.C. 708, distinguished;S. v. Dickerson, 1 Hay., 468 (407); S. v. Boyett, 10 Ired., 336; S. v.Presnell, 12 Ired., 103; S. v. Hart, 6 Jones, 389, cited and approved.) The defendant was indicted under the statute for selling liquor to a minor. It was in evidence that the minor purchased one-half pint of liquor from the defendant in the town of Shelby, in January or February, 1886; that the defendant was a regular licensed practicing physician and owned a drug-store in Shelby; that the minor called at the defendant's store and was laboring under a congestion of the lungs from a severe cold; that the defendant gave him an (620) examination and was satisfied that he needed the prescription, and prescribed whiskey, and sold him a half pint; that at the time of the sale the defendant prescribed how it should be used, and the quantity. It was in evidence that the liquor was sold to the minor as a medicine, and for medical purposes only; that it was necessary for the minor that he should have the spirits, and that whiskey was used by doctors as a medicine for such attacks. It was in evidence by the defendant that he invariably used whiskey in such cases for his patients, and that he would not have sold it to the minor except for the fact that he honestly believed that it was necessary as a medicine, and that it was not sold or prescribed to the minor for any other purpose. The physician also testified that the minor's father and mother resided in South Carolina; that he had practiced in their family and knew that lung affections were hereditary in that family; that the minor, who was about sixteen years of age, was working at a livery stable in Shelby and had been subject to much exposure.

The defendant introduced a statute regulating the sale of liquor in the town of Shelby and within two miles thereof, which was passed in 1873-74, Laws 1873-74, ch. 133, reenacted chapter 115, Laws 1876-77. This local act prohibited the sale of intoxicating liquors in the town of Shelby, except by "practicing physicians and for medicinal purposes only."

The counsel for the defendant asked the court to charge the jury that if he was a regular licensed and practicing physician in the town of Shelby, and sold to the minor the liquor as testified to, and that he honestly believed that it was necessary for the minor to take the liquor as a remedy for his affection of the lungs, and that the defendant, after examination of the patient, prescribed and sold the liquor for medicinal purposes only, he would not be guilty, and that they must find a verdict for the defendant.

The court refused to give these instructions, or any part (621) thereof, but charged the jury that if the boy was a minor, and unmarried, and the defendant sold him a pint of liquor as testified by the witnesses, he would be guilty of a violation of the statute.

The defendant excepted to this charge.

Verdict of guilty and judgment thereon, from which the defendant appealed. We had occasion in S. v. Lawrence, 97 N.C. 492, to construe the statute (The Code, sec. 1077), forbidding "dealers in intoxicating drinks or liquors" to sell or give the same in any quantity to unmarried minors, knowing them to be such, and we have held that the comprehensive, explicit and unqualified terms employed, and the purpose contemplated by it, excludes any exception arising by implication or allowable by interpretation. It therefore follows that if such a dealer — that is, in the language of the statute, "if one who keeps on hand intoxicating drinks or liquors for the purpose of sale or profit," being a practicing physician — prescribes for such a minor, knowing him to be such, such drinks or liquors as a medicine as in his judgment the minor ought to take, and thereupon sells or gives him the same, he would be guilty of a violation of the statute. This is so, as we have said, because there is no exception to or limitation upon the sweeping terms of the statute, forbidding such sales and gifts.

But it is said, "can it be that a practicing physician shall not sell or give such drinks and liquors to his patients when they require them?" Certainly not, if he is a dealer in them — otherwise he may do so.

A practicing physician who is such dealer is prohibited from (622) making such sales and gifts as certainly as other persons. It is suggested that he does not sell or give away such intoxicants as a beverage, but as a medicine. But the statute makes no such distinction. Why is none provided? Especially, why not in this statute, while such distinction is provided in similar statutes, forbidding the sale of intoxicating liquors generally in certain prescribed localities, as in the town of Shelby, where the sale in question was made and elsewhere? The striking omission was scarcely an inadvertence. It is not unreasonable to infer that it was intended, and that by it the Legislature intended the more certainly to effectuate the purpose of the statute.

The counsel for the appellant pressed upon our attention the case of S.v. Wray, 72 N.C. 253, which declared that a druggist might, in good faith, sell as a medicine, by direction of a physician, spirituous liquors in a quantity less than a quart. That case, it seems to us, went to the extreme limit of the power of interpretation, but treating it as well warranted, it does not apply here. It applied to a statute forbidding generally the sale of intoxicating liquors by a measure less than one quart, and was based upon the views that the statute was intended to prevent and suppress the abusive use of spirituous liquors generally and to enhance the revenues of the State. But the statute under consideration is different in its purpose and scope from that just referred to. It is not so general — it is limited in its operation to a class, and is intended to protect a class of young people of immature judgment and inexperience; and the total absence of exceptive provisions tends strongly to confirm the view, that the intention was to cut off all opportunity fordealers — all dealers in intoxicating drinks and liquors — to sell of give the same to them for any purpose. The purpose is not to prevent such minors from having such intoxicants for proper purposes at proper times, but to prevent dealers in them from supplying them.

The decision of the Court in S. v. Wool, 86 N.C. 708, is (623) founded upon the same principle of interpretation as that in the case above cited, and what we have said applies with equal force to it.

That the defendant, in good faith, thought he had the right to sell the minor the spirituous liquors, did not excuse him from criminal liability. This could only affect the measure of punishment.

It is a mistaken notion that positive, wilful intent, as distinguished from a mere intent, to violate the criminal law, is an essential ingredient in every criminal offense, and that where there is the absence of such intent there is no offense; this is especially so as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the offense is not made to depend upon the positive, wilful intent and purpose, nothing is left to interpretation.

It would be a very dangerous exercise of the power of courts to interpret positive statutes so as, in effect, to interpolate into them exceptive provisions. If the Court could do so, there would be scarcely a limit beyond which it might not to, and thus make, instead of interpret, the law.

Hence, in S. v. Dickerson, 1 Hay., 468 (407), where the defendant was indicted for extortion in demanding and receiving unlawful fees, he could not be excused upon the ground that he did so through mistake and bad advice. And also in S. v. Boyett, 10 Ired., 336, where the defendant was charged with voting unlawfully, he was held to be guilty, although he honestly thought he had the right to vote, and had been so advised by an intelligent person supposed to be familiar with the law. In that case Pearson, J., said: "The question, in effect, was, shall a man be allowed, in excuse of a violation of the law, to prove that he was ignorant of the very law under which he professed (624) to act and under which he claimed the privilege of voting? If he was not ignorant of the law, and that he cannot be heard to allege, he voted knowingly and, by necessary inference, fraudulently." And likewise in S. v. Pressnell, 12 Ired., 103, it was held that it is not a sufficient justification for a person who dose a criminal act under a statute to show that he did not believe it was unlawful. In that case Ruffin, C. J., said: "It was said that when one believes he is not doing an unlawful thing, there is not the guilty mind necessary to constitute a crime. But this is not correct. When the act is unlawful and voluntary, thequo animo is inferred necessarily from the act." And so also in S. v. Hart, 6 Jones, 389, it was again held that the defendant was guilty of unlawfully voting, although he honestly thought he had the right to vote and had been so advised, Ruffin, J., saying: "The defendant voluntarily gave an illegal vote, and necessarily the unlawful purpose attaches prima facie to the act. It is neither a justification nor an excuse for such an act, that other persons advised the party that it was lawful, and much less that other persons thought and believed it to be lawful. . . . He acted on his own mistaken or wilfully erroneous judgment, and must abide the consequences."Ignorantia legis neminim excusat.

The correctness of these decisions has not been seriously questioned, and decisions to the same effect, made in this and other States in large numbers, might be cited, some of them interpreting statutes more or less like that now under consideration. Whar. Cr. Law, secs. 2441, 2442, and numerous cases there cited; Bish. Stat. Cr., secs. 1019, 1020, 1023, and cases there cited.

It is only when the positive, wilful purpose to violate a criminal statute, as distinguished from a mere violation thereof, is made an essential ingredient of the offense, that honest mistake and misapprehension excuses and saves the alleged offender from guilt.

(625) The statute (Acts 1876-77, ch. 115, 1873-74, ch. 133), prohibiting the sale of spirituous liquors in the contingency prescribed therein the town of Shelby, does not modify or affect the statute (The Code, sec. 1077), forbidding the sale or gift of intoxicating drinks or liquors to minors as first above pointed out. The latter is a general public statute. The former is a local public statute, and there is nothing in it that, in terms or by implication, repeals or modifies the provisions of the general law, nor is there anything in the nature or purpose of the local statute that has such effect.

There is no error. Let this be certified to the Superior Court according to law.

Affirmed.