State v. . Whisenant

*517 HoKE, J\, after stating the case: The laws of this' State have thus far not made the purchase of whiskey a criminal offense, when it is bought by the purchaser himself and for his own use. The statute which most nearly approaches this is section 3534,_ of Eevisal, which makes it criminal for one to procure whiskey for another by reason of an unlawful sale, and constitutes such a person the agent of the vendor in such an illegal transaction. We have so construed this statute at the present term. State v. Burchfield. To bring one who procures whiskey for another under this statute, it will be noted that the sale by which it was procured must be illegal, and the law does not apply to 'cases where the sale is not illegal, or where our State legislation on the subject cannot apply to and affect the transaction. Such cases are not within the purview of the section referred to, Eevisal, section 3534, but, as to them,, the general'doctrine obtains, that in a sale of whiskey, where one acts entirely as agent of 'the buyer, having no interest in the whiskey, and taking no part in sale as vendor, nor as his agent or employee, such person is not indictable under the laws controlling the subject as they now stand. State v. Smith, 117 N. C., 809. Applying the principle announced and sustained in these decisions to the facts presented, we think there was, in effect, a verdict of not guilty rendered by the jury, and, on that finding, the defendant is entitled to be quit of any other or further molestation by reason of the occurrence tried and determined under this indictment against him. There was no testimony offered that would justify or permit a finding that a sale of whiskey consummated in Knoxville, Tenn., was an illegal sale; and if there had been, it would seem that, by reason of the commerce clause of the Federal Constitution, our State legislation on the subject could not affect the transaction, in respect to its criminality, until and after there had been a delivery within the State. State v. Trotman, 142 N. C., 662. By fair intendment, and especially when ’ *518 taken in connection with the testimony on the subject, the verdict, as it was rendered by the jury, could only mean that they acquitted! the defendant of retailing either liquor or cider, except in so far as the order sent for Ramsey to the house in Knoxville made out a case- of guilt.- This sale at Knoxville, as we have just said, was not illegal, and there was no evidence touching such order to show that defendant acted otherwise than as the buyer’s agent. The verdict then, as stated, amounted, by fair intendment, to a verdict of not guilty. As said in Clark’s Criminal Procedure, page 48G: “A verdict is not bad for informality or clerical errors in the language of it, if it is such that it can be clearly seen what is intended. It is to have a reasonable intendment, and is to receive a reasonable-construction, and must not be avoided except from necessity.” “This being a correct interpretation of the verdict as rendered by the jury, it was not within the province or power of the court, after they were discharged, to amend of alter their deliverance, in a matter of substance, to defendant’s prejudice.” Clark, 481. And our own decisions on'both propositions cited from .Clark are in substantial accord with the author. State v. Arrington, 7 N. C., 571. In this case- it was held, among other things, “That wherever a prisoner, either in terms or effect, is acquitted by the jury, the verdict' as returned should be recorded.” And Chief Justice Taylor, in a concurring opinion, speaking to this question, said: “Some of the harsh rules of the common law, in relation to criminal trials, have been gradually softened by the improved spirit of the times; and this, among others, is relaxed in modern practice, where the jury bring in a verdict of acquittal. It is considered as bearing too hard on the prisoner, and is seldom practiced. Hawk., ch. 47, sec. 11, 12. I think this course of proceeding is fit to be imitated here, whenever a prisoner, either in terms or effect, is acquitted by the jury, and that in *519 all such cases the verdict should be recorded; although I am persuaded that they were desired to reconsider 'their verdict in this case, with the purest intention, and solely with a view that they might correct the mistake they had committed. The verdict first returned ought to' have been recorded; and it ought to be done now, valeal-quantum valere potest. The effect will be the same as if a verdict of acquittal were recorded; but I think it most regular to put upon the record what the jury have found.”' There was error in respect to matters as indicated, and this will be,certified to the end that the verdict as rendered by the jury be recorded, and the defendant be discharged. Reversed.