Grepel v. State

Decided December 15, 1877

1. By section 1 of the act of April 5, 1866 (S. & S. 748), it is made unlawful for any person to furnish intoxicating liquor to a minor, knowing him to be such, with intent that the minor shall drink the intoxicating liquor, unless given, or ordered to be given, by a physician in the regular line of his practice. 2. On the trial, under an indictment charging the defendant with furnishing spirituous liquor to a minor to be drank by such minor, knowing him to be a minor, a written order from the father of the minor to the defendant directing him to sell beer to his minor son until forbidden by him, is not competent testimony for the defense. 3. Where the transaction amounts to a sale of intoxicating liquor not to be . drank by the minor, and the indictment is under the act of May 1,1854, for a sale to a minor, such written order would be competent testimony for the defense.

Decided 1877-12-15

Johnson, J.

¶1I concur with the judgment on the ground that the bill of exceptions does not show that the transaction amounted to a sale of liquor’, contrary to the act 1854. If it did, then the written order of the father rendered the sale lawful, and was admissible evidence. The act of 1866 intends to punish the act of furnishing liquor to a minor, not amounting to sale. If it does amount to a sale, it is-covered by the act of 1854, and is not an offense under the act of 1866.

¶2These two statutes provide for different acts, and an innocent sale, under the act of 1854, can not be punished under the act of 1866, as an unlawful furnishing of liquor. The prosecuting attorney can not, by his election, convert-a lawful sale into an unlawful furnishing.