175 Ind. 139 | Ind. | 1911
Appellant was tried and convicted upon an indictment in six counts, under §8337 Burns 1908, Acts 1907 p. 27, §1. The first charged an unlawful sale to Angelo Martello of twenty-one pints of beer, the defendant not having a license. The second charged the unlawful operation of a place where intoxicating liquors were sold without a license. The third charged the unlawful operation of a place where intoxicating liquors were given away without a license. The fourth, fifth and sixth, that appellant, not having a license, was unlawfully found in possession of twenty-one pints of beer, which he had in his possession for the purpose of selling to Angelo Martello. The court found him guilty generally of “ the unlawful sale of liquor as charged in the indictment,” and he was fined.
The error assigned is the overruling of.his motion for a new trial.
Appellant claims that the finding is contrary to law, in
The prosecuting witness testified that about a week prior to December 24,1909, he asked the two Weiser boys, of whom he had been accustomed to get beer, whether these was any way he could get beer, and was told that they could not furnish it. Shortly thereafter he received a circular through the mail, and with it a postal card, as he called it, informing him that if he would sign the card, put $2 in the enclosed envelope, and mail it, he would receive a case of beer. He did not know the parties to whom the card was sent, but he signed the card, enclosed $2 as directed, and received a case of beer at his house between 7 o’clock and 8 o’clock a. m., delivered there by appellant, who was paid fifteen cents by the witness’s wife in his absence. The witness did not know the beer was at the station, and did not order its delivery by appellant, though appellant had theretofore spoken to him in regard to deliveries generally of shipments to him. This evidence was supplemented by the testimony of Maurice Donnelly, that he was a licensed saloon-keeper
“ Indianapolis, Indiana.
Maurice Donnelly, licensed liquor dealer, 131 North Pennsylvania street, Indianapolis, Indiana. Please deliver to my address - dozen large bottles Terre Haute Brewing Company’s beer, - dozen small bottles Terre Haute Brewing Company’s beer.
Name.
Address.,
Orders will be filled only at licensed liquor house, 131 North Pennsylvania street, Indianapolis, Indiana, and will not become binding until accepted by the above-named dealer.”
He said he had sent such blanks to persons whose names were sent in from agencies.
The exact filling of the blanks in the order used in this case is not shown. Donnelly had made a shipment of beer to Kokomo, consigned to appellant, December 23, 1909. Appellant’s name was on the cases, as well as the name of the person to whom the case was to be delivered. The waybill was for a consignment of forty-three cases of bottled beer, one-half barrel of beer and one-fourth barrel of beer, all consigned to appellant in one shipment. The freight, which was prepaid, on the forty-three cases was $5.81, and on the barrel beer, forty-three cents. There was no bill of lading. Donnelly further testified that the freight was added to the price at which the beer was sold if delivered at his place, and that he paid the freight on the shipment. He could not recall the name Martello to whom the sale was alleged to have been made. The empty bottles and cases were shipped back to him without any arrangement with appellant to collect and return them, other than a
From these facts we are asked to reverse the judgment. It is not shown that Weiser had not directed the delivery of the beer, or the return of the empty cases. The trial court might reasonably have inferred from the evidence that
The place of sale is the place where the sale is completed by delivery. Dunn v. State (1888), 82 Ga. 27, 8 S. E. 806, 3 L. R. A. 199; Doster v. State (1893), 93 Ga. 43, 18 S. E. 997.
The cases of Harding v. State (1902), 65 Neb. 238, 91 N. W. 194, and State v. Cairns (1902), 64 Kan. 782, 68 Pac. 621, 58 L. R. A. 55, are not in point, for in each case the consignment was made through a common carrier to the purchaser. The case of United States v. Lackey (1903), 120 Fed. 577, it must be admitted, lends support to appellant’s contention. There is this distinction, however: Lackey was not a common carrier; he was a market gardener. This, it seems to us, distinguishes his case from the case of a delivery to a common carrier, obligated to carry upon payment of the costs of carriage, and impresses us with the conviction that the case shows an agency and sale in Roanoke; and to the extent of such holding we cannot follow it. Appellant was not a common carrier. He was not a general delivery man. When not delivering beer, he was employed by one person to deliver coal. The court below may reasonably have supposed that the attempt was to do indirectly what could not be done directly, and was to defeat the object and purpose of the law, and that appellant was the agent of the vendor. Mason v. State (1908), 170 Ind. 195; Government Bldg., etc., Inst. v. Denny (1900), 154 Ind. 261.
We cannot say that error is shown. The judgment is affirmed.