147 Ky. 715 | Ky. Ct. App. | 1912
Opinion of the Court by
Never sing.
The appellant, under an indictment charging him with the sale of intoxicating liquor in local option territory in Laurel County was convicted upon the following agreed statement of facts:
“It is agreed that the Orene Parker 'Company is a partnership, with its principal office and place of business in Covington, Kentucky, and that Orene Parker is the sole owner, doing business under the name of The Orene Parker Company, and that he resides in Covington, Kenton County, Kentucky; that the defendant, The
A reversal of the judgment is asked upon the ground that under the agreed statement of facts the appellant did not sell any whiskey in and was not guilty of a violation in Laurel County of the local option laws of the State.
As the whiskey was shipped from Cincinnati, in the State of Ohio, to the purchaser in the city of London, Laurel County, in the State of Kentucky,, the shipment of the whiskéy was clearly an interstate transaction. It was not subject to control or regulation by the laws of this State, and its interstate character was not affected by the method employed in the solicitation of the sale of the whiskey. It Is equally clear that the fact that the whiskey was manufactured in this State, and tor sometime before its sale and shipment was stored in Covington, in this State, did not in any way affect the character of the transaction as an interstate shipment. It. was a matter of no importance where the whiskey was manufactured or where it was stored, pievious to its shipment. The rules of law applicable- are the same as if the whiskey had been manufactured and -stored in Ohio or some other State1 and had never been brought into this State previous t'o its ■ shipment. . As the sale of the whiskey was consummated and the title to it passed when 'it was delivered to the carrier in Cincinnati, Ohio, it would seem to follow necessarily that the appellant could not be convicted for selling the whiskey in Laurel County. Kahn’s Sons v. Commonwealth, 143 Ky., 297; Whitmire v. Commonwealth, 140 Ky., 734.
But -if the shipment'from Covington to Cincinnati, and its re-shipment" from Cincinnati, Ohio, to Laurel County should be considered as a mere device or scheme in an attempt to evade the laws of this State, and the transaction' treated as if the whiskey was in fact shipped from Covington,-Kentucky, it would not help the case for the ■■ Commonwealth,- Keeping in mind the fact that this was not a -C. O. D. transaction, and that the full purchase-price of the whiskey and the carrier charges were paid
“If it be true, as contended for the Commonwealth, that appellant should be held to have solicited the order from the purchaser for the whiskey,' that fact did not constitute the transaction a sale in the city of Princeton; it was only a step preliminary to the sale, which took place in Evansville, Indiana, where the whiskey was stored, after Adler received the order and money from Easter Petit and when he delivered to the express company, consigned to her, the quantity of whiskey desig■niufprl in ■f'Tip nrripr **
In Commonwealth v. Gast, Crofts & Co., 143 Ky., 674, Gast, Crofts & Co. and Charlie House, its agent, were jointly indicted by the grand jury of Clay County for selling whiskey to Prank Davis in that county. In holding that the Clay Circuit Court had no jurisdiction of the offense, if any, committed by either of the accused, the court said:
“House was only a traveling salesman who solicited Davis, a merchant, to make and sign an order to his house, the appellant corporation, for a bill of goods, and the cider was among the goods ordered. * * * There is no statute in this State placing a penalty upon persons who solicit orders for intoxicating liquors. * * * Appellee corporation did not make any sale or delivery of an intoxicating beverage, to-wit: Cider, to Davis in a local option district. The order was sent by Davis from Manchester to their place of business in Jefferson County, and the corporation- parted with the property and the possession when it delivered the order to the railroad, a common carrier, in Jefferson County.”
In Commonwealth v. Wilson, 145 Ky., 413, Wilson, who lived in Bell County, was indicted for selling whiskey to one Jim Sampson in Knox County. The evidence showed that Sampson ordered the whiskey from Wilson, and that Wilson sent it to him by the person who ordered it. Upon these facts the court said:
So that, whether the delivery of the whiskey to the consignee, Baker, took place in Cincinnati, Ohio, or in Covington, Kentucky, no offense was committed by the appellant in Laurel County, as there was no sale in that county. The soliciting of purchasers for whiskey in local option territory not being a violation of law, it is wholly immaterial in what method or by what means the soliciting is done or the sale effected. Nor is the soliciting of sales of whiskey a device or scheme to evade the operation or defeat the purpose of the law within the meaning of section 2570 of the Kentucky Statutes. As the act of soliciting is not punishable, of course no device or scheme by which the act of soliciting may be. attended or accomplished can be punished. The soliciting may be privately and secretly, or boldly and openly done. It may be by means of agents or by means of correspondence. It is the sale, and not the solicitation, that constitutes the offense in cases like this. The manner or method by which the sale is brought about or consummated is of no consequence in determining the guilt or innocence of the accused. The party making the sale can only be punished when the sale is made in prohibited territory. If the sale is not made in prohibited territory, it necessarily follows that the person accused must go acquit. Under all the authorities, the sale in this case
Upon- the agreed statement of facts, there should have been a judgment for the defendant.
Wherefore, the judgment is reversed, with directions to proceed in conformity with this opinion.