171 Ky. 194
Court of Appeals of Kentucky.
Sept. 27, 1916.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
R. N. Wathen and W. G. Abel were charged with unlawful sale of intoxicating liquors in local option territory. On motion the court peremptorily instructed to find Abel not guilty.
From a judgment of conviction and order overruling motion for new trial, Wathen appeals.

This is an appeal by R. N. Wathen from a judgment of the Knox circuit court, wherein he was convicted of the offense of unlawfully selling, bartering, and loaning, directly and indirectly, spirituous, vinous, and malt liquors, in a territory wherein the local option law was in force, and in violation of that law. The prosecution, which resulted in the judgment, was based upon an information which was filed in the circuit court by the commonwealth's attorney for the district in which Knox county is situated. The information alleged that on or about the 10th day of January, 1916, the appellant and W. G. Abel unlawfully sold, bartered, and loaned, directly and indirectly, in Knox county, spirituous, vinous, and malt liquors to C. L. Harbin, contrary to and in violation of the local option law which was then in full force and effect in Knox county. The appellant and Abel entered pleas of not guilty to the charge set forth in the information, and a trial by jury followed. At the conclusion of the evidence offered by the commonwealth the accused moved the court to peremptorily instruct the jury to find a verdict of not guilty. The motion was sustained as to Abel, as the evidence did not connect him in any way with the transactions upon which the prosecution relied for a conviction. The motion as to appellant was overruled, and an exception saved. At the conclusion of all the evidence, the motion for a direct verdict in his favor was renewed, but was overruled by the court, to which ruling the appellant excepted. The jury returned a verdict finding the appellant guilty of the offense charged in the information, and fixed the penalty at a fine of $80, and a judgment of the court was rendered accordingly. The appellant's motion and grounds for a new trial being overruled, hence this appeal.

The grounds upon which a reversal of the judgment are urged are: First, the court erred to appellant's prejudice in overruling his motion for a direct verdict of not guilty at the conclusion of the evidence for the commonwealth and at the conclusion of all the evidence; second, the instructions given the jury were erroneous and prejudicial. It is conceded that Knox county is a "dry" territory, or a county wherein the local option law is in force, and that the city of Lebanon, in Marion county, is a "wet" territory, or a territory wherein the local option law is not in force, and where the sale of spirituous, vinous, and malt liquors by a licensed dealer is lawful.

There were no contradictions in the evidence. The undisputed facts of the case appear to be as follows: The appellant was a resident of Lebanon, Ky., where he was engaged in the business of a distiller, and also maintained the business of a wholesale and retail liquor dealer, for engaging in which business he was duly licensed under the laws of the state. One J. W. Smith was in the employment of the appellant, and was furnished by appellant with blanks on which persons who desired to purchase liquors from appellant could make an order upon appellant for it, and send them to him by mail addressed to him at his place of business in Lebanon, Ky. He was also furnished with envelopes which were addressed to appellant at Lebanon, Ky., and stamped with the necessary postage. In addition to the above, Smith was furnished with printed matter, which advertised the goods and business of appellant. Smith's duties were to go through the country and to solicit persons to purchase the goods of appellant, and to deliver to them the blank order forms and envelopes, and to distribute the printed matter containing the advertisements, but he made no sales nor received any money in payment of goods, at least from persons who resided in local option territory. For Smith's services he received a regular salary. Smith went to Artemus, in Knox county, and there distributed the blank order forms, envelopes, and the advertising matter to a number of persons who resided at that place. He also had with him some whisky, and gave to each of several persons a drink of it from a bottle, and to one or more of them stated that, if they should purchase whisky from appellant, it would be similar in quality to the drink of whisky which they had taken. He said to the witness Harbin that, if he wanted any of the liquor, he could fill out the order blank and send it with the money or a check to pay for it to appellant, and that the liquor would be as good as the drink he had taken. Just previous to Christmas, 1915, Harbin filled out one of the order blanks for two gallons of whisky, signed it with his name, and inclosed with it in an envelope his check for the price of the whisky, and sent it by mail to appellant at Lebanon. The communication which Harbin sent to appellant by mail requested appellant to ship to him by Adams Express two gallons of whisky, and gave Harbin's post office address and the express office to which he desired the whisky to be shipped, and the fact the price was inclosed, and also contained a statement that the whisky was desired for his personal and family use. Harbin received the two gallons of whisky ordered by him within a day or two, through the office of the Adams Express Company, in the town of Artemus.

Proof was made that three other persons who resided at Artemus had procured liquors from appellant in the same way that Harbin did. The appellant objected to the testimony offered in regard to the purchases by these three persons, but his objection was overruled, to which rulings of the court he saved exceptions. It is unnecessary, however, for the purposes of the decision of this appeal to pass upon the question as to whether the admission of proof of the three sales to persons, other than Harbin, was error, as the purchases of the whisky by them were made in the same way and manner as the purchase by Harbin, except probably one or more of them sent to appellant a post office money order, instead of his check, in payment for his purchase.

The question for decision upon the facts of this case, about which there was no dispute, is a question of law purely, and is whether the sale was made either directly or indirectly by appellant, in Knox county, where the sale of spirituous liquors is prohibited by the local option law, or was it made in Lebanon, where the local option law does not prevail, and where, therefore, the sale was lawful. It will be observed that there is an entire absence of proof that Smith sold or attempted to make a sale of the whisky to Harbin. The evidence in regard to the actions and conduct of Smith only tends to prove that Smith solicited Harbin to order whisky from the appellant at Lebanon. Smith did not receive any money for the whisky; neither did he make out or receive the order for the whisky; neither does the evidence show that he was present or had any knowledge of Harbin making the order. If Smith had made out the order and procured Harbin to sign it and forwarded it to appellant, the evidence shows that it would have been subject to the approval of appellant, and would not have been a sale until appellant had accepted the order and delivered the whisky to the common carrier, consigned to Harbin. In the instant case the solicitation for the order for the liquors was not for a sale in local option territory, but for a sale in "wet" territory. There is no element of a sale or contract for a sale in the negotiations between Smith and Harbin. Harbin made application to appellant by letter, which was addressed to and received by appellant at Lebanon, for the sale of whisky. Inclosed in the letter was the personal check of Harbin for the price. Appellant was free to make the sale or refuse to do so. He accepted the order of Harbin at Lebanon, there accepted the check, and delivered the whisky to the Adams Express Company, a common carrier, consigned to Harbin, by the direction of Harbin. Under such circumstances, the common carrier is the agent of the purchaser, and not of the seller. The sale was completed when the appellant delivered the liquor to the common carrier, consigned to Harbin, and parted with his control over it. If a loss of the liquor had occurred after its delivery to the express company in Lebanon, the loss would have been sustained by Harbin, and he could not have refused to have paid for it. Hence the sale was made in Lebanon, and not directly nor indirectly in Knox county. It has been repeatedly held by this court that, where one sends an order for liquors by letter to a dealer, accompanied by check, money order, or money in payment of the price of the liquor, with directions that the liquor be shipped to the purchaser by a common carrier, and the dealer accepts the order and delivers the goods to the common carrier, consigned to the purchaser, the sale is made where the goods are delivered to the carrier, and not at the point where the purchaser receives them from the carrier. The title to the property passes from the seller to the purchaser when it is delivered to the carrier, consigned to the purchaser, in the absence of any contract to the contrary, as in this case.

Hence, there being no evidence which conduced to show that the sale of the liquor to Harbin was made either directly or indirectly in Knox county, the court was in error in overruling the motions of appellant to direct a verdict in his favor at the close of the evidence for the commonwealth, as well as at the close of all the evidence.

Having arrived at the above conclusion, it is unnecessary to consider the instructions given to the jury, but suffice it to say they were erroneous, in that they were not in conformity to the principles of this opinion.

The judgment is reversed, and cause remanded for proceedings consistent with this opinion.

Ky.App. 1916.
188 S.W. 346, 171 Ky. 194

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