State v. . McMinn

Dillard, J. There is no error in the refusal of the charge requested, nor in the charge given. A sale is the transmutation of the property in a personal chattel-from one to another on a quid pro quo, paid or agreed to be paid, and such a change of property in the retail of spirituous liquors by the small measur.e is usually effected by the delivery of the article and the payment of the price simultaneously, but it may be in other modes. If the liquor come directly or indirectly from the owner to another on a valuable consideration, it is a sale; and if so, it is -perfectly immaterial as to the mode or manner of it. To constitute a sale under the statute against retailing, there is no necessity for a manual separation and delivery of the parcel by the retailer to the customer, but it will be a delivery sufficient in lav/ if the keg, decanter or other vessel be so placed or prepared as that the customer can or may with the consent of .the owner draw for himself; and so likewise, the price paid in completing the sale need not be paid into the hands of the proprietor, but it will be equivalent if it be deposited for him in a place of his appointment. Now in our case, the particular drink for the sale of which this indictment was brought, was not poured out and delivered by the defendant to Nelson, but the proof was that the defendant had a room in the town in which was a table with a decanter thereon, and tumblers, and a small hole in the top of the table, and that Nelson during the week of court went into this room, as he had done divers times before, and poured out and drank a small parcel of liquor, and then dropped into the hole money at the rate -of a nickel for a *671 drink, the defendant being present and nothing said between him and the witness. ’ These facts, although no conversation passed between the -witness and defendant, were some evidence of the alleged illegal sale to Nelson during court week, and hot only warranted the judge to refuse the instruction asked by the defendant, but to authorize him to submit the same to the consideration of the jury as reasonably sufficient to establish the guilt of the defendant, if therefrom they should find that 'the liquor drank by the witness was the property of the defendant, and that he received therefor the money which was dropped into the hole in the table-, and that the arrangement of things was a device to evade the statute. His Honor’s charge was in accordance with the precedents in the cases, State v. Kirkham, 1 Ired., 384; State v. Bell, 2 Jones, 337; State v. Simmons, 66 N. C., 622, and we must declare there is no error. Let this be certified. Per Curiam. No error.