State v. Hassett

64 Vt. 46

• Court: Supreme Court of Vermont
• Decided: October 15, 1891
• Status: Published

Opinion

TAFT J.

delivered the opinion of the court.

1. If there was any evidence in the case tending to show an offense under the statute forbidding the sale, furnishing or giving away of intoxicating liquor, it was the duty of the court to submit the case to the jury.

The witness Ewing testified “ I asked him (respondent) if he would let me have a pint of whiskey and he said he would,” and in answer to the inquiry, “ Did you pay him for it” said, “Yes sir, I gave him a quarter.” This testimony tended to establish a sale .The witness further testified that he gave the respondent the quarter, before the latter went for the whiskey, and that he was gone some ten, fifteen, or twenty minutes, and returned bringing the whiskey. It was a fairly debatable question upon the evidence, whether the respondent owned the whiskey that he went after, or whether he went out as the agent of the witness, and purchased it of some third party. If it was his own he went and got, the transaction was a sale ; if he bought it of another, procured it for the witness and took it to him, it was a furnishing. In this latter aspect of the case, the testimony tended to establish a furnishing. There being evidence in the case to establish both a sale and a furnishing, the motion to order a verdict for the respondent was properly overruled. There was ample evidence to show either a sale or furnishing, and it was for the jury to say whether it was the one or the other.

2. That part of the charge excepted to, was applicable to the testimony tending to show a furnishing; the facts stated therein, viz : that the respondent went for the whiskey and procured it for Ewing, and took it to him, paying Ewing’s money for it to some third party, might have been very properly found from the testimony before us. 'Whether the whiskey was to be shared between the respondent and Ewing was immaterial. If Ewing had any part of it, that part was furnished him by the respondent. If the jury did not find a sale, but did find that the respondent furnished it as the testimony tended to show, a conviction for furnishing was warranted. The complaint was the usual one under Cap. 169 R. L. for selling, furnishing and giving away intoxicating liquors, the testimony tended to establish the offense of selling and furnishing, the charge complained of was applicable to the allegation of furnishing and was unobjectionable.

The record upon inspection discloses no error, the exceptions are overruled, judgment of guilty, and sentence upon the verdict, and execution of the sentence ordered.