Howell v. State ( 1906 )

Fish, C. J.

An indictment against Bill Howell charged that on, a designated day, in a given county, he “did unlawfully sell” spirit-nous, malt, alcoholic, and intoxicating liquors, other than domestic-wines, to named persons, contrary to the laws of the State, etc. The indictment was demurred to on the ground that it failed to-charge that anything of value was paid for the liquor. The demurrer was overruled, and the accused excepted pendente lite. On. the trial there was a verdict of guilty. The accused moved for a new trial, which was refused, and the case is here upon exceptions to the overruling of the demurrer and the motion for a new trial.,

1. The Penal Code, §431, declares: “Any person violating any provision of the local option law as embraced in sections 1541 to-.-1550, inclusive, of the Civil Code, shall be guilty of a misdemeanor.”' Section 1548 of the Civil Code (Political) provides: “If a majority of the votes cast at any election, held as by this chapter provided,, shall be against the sale, it shall not be lawful for any person within the limits of such county to sell or barter for valuable consideration,, either directly or indirectly, or give away to induce trade at anyplace of business, or furnish at any other public places, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters,, or other drinks which if drunk to excess will produce intoxication.” While the statute makes it penal “to sell or barter for valuable con--sideration” the liquors therein described, we are clearly of opinion that the words “for valuable consideration” are merely surplusage.. The manifest purpose of the statute is to make unlawful the sale or barter, either directly or indirectly, or the giving away to induce trade-at any place of business, or the furnishing at any other public place,, in a prohibition county, of the liquors mentioned. “To sell property is, in the strict signification of the word ‘sell/ to transfer it from, one to another in consideration of .a price paid or agreed to be paid in current money. And the word ‘sold’ imports a consideration of' price.” 25 Am. & Eng. Ene. L. 284. Bouvier’s Law Dictionary-defines a sale to be “An agreement by which one of two contracting-parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other' party,, who is called the buyer or purchaser, who, on his part, agrees to pay-such price.” Citing 2 Kent, 363; Pothier, Vente, n. 1. “A sale,, in the ordinary sense of the word, is a transfer of property for a, fixed price in money or its equivalent” Five Per Cent. Cases, 110 U. S. 471-478; Northern Pac. R. Co. v. Sanders, 47 Fed. 604-606. “Sale” is a transmutation of property or a right from one man to another in consideration of a sum of money, as opposed to barter, exchange, and gifts. Eapal. & L. Diet. “A sale in its broadest sense comprehends any contract for the transfer of property from one person to another for a valuable consideration. Century Dictionary; Gain v. Ligon, 71 Ga. 694. It is often used in a more limited sense as embracing.only those contracts which are founded upon a money consideration. In an act prohibiting the sale of intoxicating liquors the word 'sale’ is to be construed in its broad sense, and therefore includes what is commonly known as barter and exchange.” James v. State, ante, 72. As there must be a valuable consideration to constitute a sale, the words “to sell,” in section 1548 of the Political Code, considered by themselves, necessarily mean to transfer the liquor for a valuable consideration. It follows that the demurrer was properly overruled.

2. On the trial the court instructed the jury as follows: “I charge you . . that you are authorized to consider evidence as to the good character of the defendant. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury and to lead them to believe, in view of the improbability that a person of such character would be guilty of the offense charged, that the other evidence is false, or the witnesses are mistaken; and you are authorized, if you believe that the defendant's character has been proven to be such and so good as to lead your minds to the belief that all the testimony for the State is false, or such as to make you have •a reasonable doubt of guilt, you should acquit him; but otherwise, if you do not find such proof of character as to justify this course.” This charge was excepted to on the ground that “it took away from the consideration of thé jury the good character of the defendant unless the jury should determine that the evidence is false, or the witnesses are mistaken. In other words, . . that before they could consider the good character of the defendant, they must at first come to the conclusion that the evidence for the State is false ■or the witnesses are mistaken, but if they come to the conclusion that the evidence was false, they would not be authorized to consider the good character of the defendant.” The exception was not well taken. Seymour v. State, 102 Ga. 803; Rice on Evidence, Crim. § 371.

3-11. The other assignments of error are sufficiently dealt with in the headnotes.

Judgment affirmed.

All the Justices concur.