State v. Smith , 81 Vt. 291 ( 1908 )

Tyler, J.

Information for selling and furnishing intoxicating liquor without authority. The only evidence produced by the State tending to prove the offence charged was that of the witness Hartwell, which was, in substance, that the respondent boarded with him in the summer of 1907; that they sometimes sent together >out of the State for liquor; that “I would put in ,a dollar for a couple of quarts and it would come with his liquor and in his name.” Most of the time, but not always, Hartwell put in the money before the order was sent. On this occasion he did not have the money and never has paid the respondent for the quart of whiskey then obtained. When he came in from work, on the day alleged, the respondent was upstairs in his room. When Hartwell went up, the respondent set a bottle of whiskey on the stand and said, ‘ ‘ That is what you sent for” and Hartwell took a drink. On cross-examination the witness testified: “He asked me if I wanted to send; that he was going to have some come. I said, ‘I haven’t the money to spare now.’ My share was to be fifty cents for one quart.”

Upon this evidence the transaction was susceptible of two constructions. It could not be held, as matter of law that it was a sale from the respondent to Hartwell. The purchase may have been made by the respondent for himself and Hart-well, the respondent trusting Hartwell for the latter’s share. The conduct of the respondent on the arrival of the liquor at his house in delivering one bottle to Hartwell, saying it was what he' sent for, tended to show that they both regarded that bottle as Hartwell’s, the respondent loaning him the money for the price paid.

We think the court erred in instructing the jury that if they believed the testimony of Hartwell, the transaction constituted the offence charged. The case should have been submitted to the jury to decide whether the respondent delivered the liquor to Hartwell as the latter’s property, under an agreement, or whether the transaction constituted a sale.

Judgment reversed, verdict set aside and cause remanded.