Edgar v. State

¶1i. liquor; »toSeminor ■mistake of •liis age.

¶2It was no justification or excuse for the defendant that when he sold the liquor, both he and the minor believed that the latter was of age. He sold it at his ° peril. Redmond v. The State, 36 Ark., 58; Crampton v. The State, ante.

¶3•2. onus as •consent.*8' ^ was n0^ necessary for the State to prove that the sale was not by the written consent of the parents or guardian of the minor; the burden of proving such consent was on the defendant. If given, the proof of it was peculiarly within his power.

¶4Greenleaf says: “When the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or crimiual prosecutions for a penalty for doing an act which the Statutes do not permit to be done by any person, except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great.” 1 Green. Ev., sec. 79. And Bishop in his work on statutory crimes, says : & •$ ■& # •“If the law forbids the mass of the community to sell intoxicating liquors, but grants license to some particular in_ ■dividuals to sell it, then if some one person is indicted for making an unlicensed sale, the presumption that what is common in general belongs likewise to the particular stands as jprima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further consideration, that since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the or'derly and convenient administration of justice is promoted, while no harm is done to the individual, by casting the burden on him.” And he further remarks : “The question relates, not only to the want of a license from the public author ities, but the want also of the consent of parents, guardians .and the like.” Bish. Stat. Crimes, secs. 1051, 1052; 1 Wharton Ev., sec. 368; Roscoes Crim. Ev., 79; Hopper v. The State, 19 Ark., 143; Farrall. The State, 32 Ala , 557.

¶5The case otFarrall v. The State, is directly in point. It was an indictment for selling liquor to a minor — a student at school — without the consent of his parent or guardian, and it-was held that the burden of proving such consent was •on the defendant.

¶6Evidenee of miab As the person to whom the liquor was sold, was a petent witness to prove his own age, there could be no objection to his stating that he derived his knowledge of ■day on which he became of age from an entry of his birth in the family Bible, or from any other source of information. His evidence as to that fact, was, as a matter of course, but hearsay.

¶7Judicial “y^ntoí-As every person of common intelligence knows that * ° whisky is an intoxicating liquor, and there was no question, and could be none, as to that fact, the struction that it was so was unobjectionable.

¶8The judgment is affirmed.