86 S.E. 999 | N.C. | 1915
This is a claim and delivery, begun before a justice of the peace, for 40 gallons of wine. On appeal to the Superior Court the following facts were agreed: On 1 July, 1915, the plaintiff received in one package from the railway company at Mount Airy, N.C. vinous liquor to the amount of 40 gallons, said liquors containing 12 per cent of alcohol. On 12 July, 1915, a warrant was issued against said Felia for receiving a package of more than a quart of vinous liquor in violation of section 2, ch. 97, Laws 1915. He was arrested and the liquor seized. On trial before the recorder he was found guilty and fined. He paid the fine and costs and was discharged. He was the keeper of a boarding house and the wine was used by him on his table by his boarders at every meal, though no extra charge was made the boarders for the wine. In that action the court found as a fact that there was no evidence going to show that the defendant had the wine for the purposes of sale. The recorder, as a part of his judgment, directed the officer to destroy the wine. Thereafter the plaintiff herein (the defendant in the criminal action) instituted this suit for possession of the said wine against U. G. Belton, the officer who had the same in possession, who gave a replevy bond and retained possession of the wine. On appeal to the Superior Court judgment upon the case agreed was rendered that the plaintiff was not entitled to recover possession of the (113) wine and dismissing the action; and further directing that the defendant as the officer of the law should execute the judgment in the criminal action by disposing of the wine or destroying the same.
It was also agreed as additional facts that a part of the wine in question had been used upon the table in the plaintiff's boarding house *160 before any seizure and, but for the seizure, the balance would have been used in the same way; that the plaintiff, his family and boarders are Italians and that the wine was served on the table in connection with the regular meals for dinner and supper, daily. Laws 1915, ch. 97, sec. 7, provides: "It shall be unlawful for any person, firm or corporation to serve with meals, or otherwise, any spirituous, vinous fermented or malt liquors or intoxicating bitters where any charge is made for such found guilty in the criminal action, fined, and the liquor ordered to be destroyed. He did not appeal from the judgment, in that case and cannot now in a civil action seek to set aside and disregard such judgment.
It does not appear whether the liquor was shipped to Mount Airy from a point within the State or from without the State, nor does it make any difference in any aspect. The consignee had taken the 40 gallons of wine out of the depot, had opened the original package and was using it illegally in violation of the statute. Moreover it is now by order of the court in custodia legis.
Besides, chapter 97, Laws 1915, makes it unlawful for an one to deliver, in any one package, or at any time, any spirituous or vinous liquors to any person in a quantity greater than one quart and for any person to receive a greater quantity than one quart of spirituous or vinous liquors at any one time. If the defendant Belton should voluntarily deliver this wine to the plaintiff he would be indictable and the plaintiff, Felia, would also be indictable. Certainly the court cannot by judgment in this case direct the officer to do an illegal act or permit the plaintiff to commit an indictable. Certainly the court cannot by judgment in this case direct the officer to do an illegal act or permit the plaintiff to commit an indictable offense. Laws 1915, ch. 97, sec. 13, would make both the plaintiff and defendant guilty of a misdemeanor, and the court cannot dispense from the liability.
The judgment of the court in the criminal action to destroy the vinous liquid was unappealed from and must be enforced.
Affirmed.
Cited: Skinner v. Thomas,
(114)
