| Ala. | Nov 15, 1890
These cases, involving the same questions, were submitted and will be considered together.
The appellants were separately indicted and convicted for selling whiskey in DeKalb county, in violation of the provisions of a statute prohibiting the sale, or otherwise disposing of spirituous, vinous or malt liquors, in the county of DeKalb. Acts 1880-1, p. 167. The sale by each of the appellants, within twelve months before the finding of the indictment, is clearly proved. The defense is, that the liquor was imported into this State from another State, and sold by appellants as the agents of the importer, in the original packages in which it was shipped. Before the passage of the late act of Congress, intoxicating liquors could be imported from one State into another, and there sold, without subjecting the seller to the punishment imposed by the State prohibition law, provided the original package was not broken; the Supreme Court of the United States having decided in Leisy v. Hardin, 135 U.S. 100" court="SCOTUS" date_filed="1890-04-28" href="https://app.midpage.ai/document/leisy-v-hardin-92767?utm_source=webapp" opinion_id="92767">135 U. S. 100, that the right of importation oí distilled liquors from one State into another includes the right to sell in the original packages at the place where importation terminates; and that a State statute prohibiting the sale of intoxicating liquors, as applied to a sale by a non-resident importer in the original packages, unbroken and unopened, in which they were brought from another State, in the absence of congressional permission, is repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several States, and is inoperative. The decision being binding on this court, it is our duty to recognize it as authoritative in all cases coming within its scope and purview. According to the principle of the decision, however, the constitutional protection terminates, ‘■when the importer has so acted upon it, that it has become incorporated and mixed up with the general mass of property in the country, which happens when the original package is no longer such in his hands” — when it is opened and broken. When this occurs, the State may interfere to prohibit its sale.
A succinct statement of the facts in each case, which vary somewhat, is necessary to a proper understanding of the precise question involved. In Rion's case, the liquor was shipped by B. L. Lowenthall & Son, wholesale and retail dealers, residing and doing business in Nashville, Tennessee, in half-pint, pint, and quart bottles. The bottles were separately wrapped in tissue paper, each labelled “original package,” with the name of the importer, and shipped in an open box, with hay laid between them, each box marked with the number of bottles, and their sizes, contained therein. From the bill of lading put in evidence, it appears that the boxes contained ten hundred and seventy-five bottles, and twenty-five jugs of liquor, and that shipped at the same time were twenty casks containing bottles of beer, and three casks containing bottles of ale; this was done to facilitate the shipment. Rion sold the whiskey as the agent of the importer, by the single bottle, wrapped and labelled in the manner stated.
On these facts, the question arises, whether the bottles having been placed and shipped in an open box, each bottle, or' the box containing them, constituted the original package. The small size of the packages, if the bottles be otherwise considered original packages, should have no bearing upon the answer to this question. As said In re Beine, 42 Fed. Rep. 545, the importer may determine, in the absence of a regulation by Congress, the form and size of the packages he puts up for export. We do not controvert the proposition, that under the decision of the Supreme Court, intoxicating liquors may be shipped in single bottles, as distinct and separate packages, and that the importer, in such case, has the right to sell a single bottle as in the original package. Conceding this, was the liquor sold by Rion so shipped ? In re Beine, supra, sheds no light upon this question. In that case, single bottles of beer and whiskey, packed and sealed, or nailed up in boxes of paste-board or wood, were shipped and sold in that shape. The boxes containing one bottle were not packed in any other box. In this case, the bottles, separately wrapped in paper, were shipped in a box, and sold singly. Merely labelling each bottle “original package,” did not make it one, if it Avas not really an original package. The term to pack, in its ordinary signiication, especially when used in reference
On account of the paucity of facts, we have had'more difficulty in reaching a satisfactory conclusion on Keith)s appeal. In reference to the mode of shipment shown by the bill of exceptions, the facts are: The liquor was shipped by a retail liquor dealer, engaged in business and residing in Rising Fawn, Georgia, in bottles (sizes not stated) securely corked and wrapped separately in paper bags, each marked with the kind of liquor and the name of the shipper, and consigned to him at Fort Fayne, Alabama. The bottles were sometimes placed, for the purpose of transportation, loosely on the floor of the cars, and sometimes loosely in an open box, which was fastened in some manner. The agent of the railroad company at Fort Payne counted the bottles, and checked them out to the defendant, who carried them to his store, and put them on shelves, where there was no other kind of goods. .They were sold singly bv defendant, as the agent of the importer, wrapped as
The State having shown a prima facie case, in order to defeat the State law, the burden and duty were on appellant to prove the facts which rendered it inoperative, and which bring the sale within the protection given to importers and vendors of original packages by the commercial clause of the constitution. The State is not required to negative in the indictment that the sale was of liquor in the original package in which it was imported from another State.—Dorman v. State, 34 Ala. 216" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/borman-v-state-6506498?utm_source=webapp" opinion_id="6506498">34 Ala. 216; State v. Robinson, 39 Me. 150" court="Me." date_filed="1855-07-01" href="https://app.midpage.ai/document/state-v-robinson-4929827?utm_source=webapp" opinion_id="4929827">39 Me. 150; State v. Gurney, 34 Me. 149; Cleveland v. State, 86 Ala. 1" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/cleveland-v-state-6513314?utm_source=webapp" opinion_id="6513314">86 Ala. 1. This is matter of defense, to be brought forward by plea or evidence. Also, by this rule, if conceded that the bottles placed on the floor of the car were each an original package, and it should be found that the box, as to those placed therein, was the original package; then it would be incumbent on appellant to show that the liquor sold by him was one of the bottles placed on the floor of the car.
The onus being on appellant to show an importation and sale as to which the State statute is inoperative, we can not say that the court erred in instructing the jury, that appellant •would not be protected ■ if the liquor was shipped separately in paper bags and placed therein; or in refusing to charge, as asked by appellant, if the jury have a reasonable doubt as to the form in which the bottle sold was shipped, their verdict must be for defendant. The phrase in the charge given, was shipped in open boxes, imports that they were shipped by the shipper. The importer ships, the carrier transports. If appellant apprehended that the tendency of the charge was to mislead the jury, this could and should have been avoided by a qualifying or explanatory charge.
Section 750 of the Code provides, that whenever, at any regular term of a Circuit Court, there shall be a failure to dis
Affirmed.