Appeal
from Superior Court, Mecklenburg County; Long, Judge.
The
Colonial Club was convicted of unlawfully selling liquor, and
it appeals. Reversed.
A
"sale" is a transmutation of the property in a
personal chattel from one to another for a quid pro quo, paid
or agreed to be paid; the passing of title and possession of
any property for money which the buyer pays or promises to
pay (quoting Words and Phrases, vol. 7, pp. 6291, 6292).
The
indictment of defendant contains three counts, to wit: First
count: That the defendant solicited orders for intoxicating
liquors within the borders of Mecklenburg county, contrary to
law. Second count: That the defendant sold and retailed
spirituous and malt liquors to some person to the jurors
unknown. Third count: That the defendant kept on hand for
sale more than 2 1/2 gallons of spirituous liquors in the
county of Mecklenburg, contrary to law. The defendant pleaded
not guilty. The jury rendered the following special verdict:
"The
Colonial Club is a corporation duly created and organized
under the laws of the state of North Carolina; the charter
of said club being dated the 22d day of June, 1904, a copy
of which charter is hereto attached, and a copy of the
by-laws of the said club is hereto attached. That said club
has its clubrooms in a commodious building at the corner of
North Tryon and East Fifth streets, in the city of
Charlotte, N.C. There are 180 members of said club. The
initiation fee is $10, and the quarterly dues $6. Nobody
but men can join the club, and they must be over 21 years
of age. That said club has a manager, who stays at said
clubrooms most all his time, and also has a president and
board of directors and treasurer. That said club keeps on
hand a book, with order blanks for lager beer, a copy of
which is hereto attached. The order blank has a stub and
corresponds with the number on the order. Said stub is kept
by the club, and when an order is made a memorandum is made
on the same number as the order blank is on the stub
showing substantially the same as on the order blank, a
copy of which stub is hereto attached. These books, with
the order blanks, are paid for by the club; but no officer
of the club actually solicits a member to make the order.
When the order is made by the member of the club, the money
for the order is given to the manager of the club, and the
manager turns the money over to the treasurer of the club.
The treasurer of the club has a banking account, in which
he banks the money received by him and sends the order on
the liquor house, with the check of the club for the amount
received from the member, and the liquor is sent
to the member in care of the club. That the club makes no
charges to the members and gets no profits out of the
transaction. That, at the time the beer was received by the
club (if the order was for beer), the manager would give
the member a book, with the same number on it as was on the
order blank and on the stub, and, if the order was for 12
dozen bottles of beer, the book would contain 12 dozen
separate coupons. A copy of the kind of book issued is
hereto attached. That the manager of the club kept and
keeps a system of refrigerators, in which all the beers are
mixed with beer of other members of the club. If the club
member wants a bottle of beer for himself and a friend, he
hands the book, a copy of which is hereto attached, to the
steward of the club, who would tear out as many coupons as
bottles of beer ordered, and deliver to such member the
number of such bottles of beer ordered, getting them out of
the refrigerators where it was mixed with the other beer of
the other members of the club. That the liquor ordered by
this club is only beer, and orders were sent out of the
state of North Carolina. That this system of ordering and
delivering lager beer was at times hereinafter mentioned
and at the time of finding this indictment carried on at
the club's rooms in the city of Charlotte by its
manager and treasurer, under the directions of said club.
That, following these regulations of the club, one of its
members, a person to the jurors unknown, went to the
clubrooms in the city of Charlotte, on the -- day of --
1910, paid the club's manager the sum of $8.50, and
asked the manager to fill out one of the order blanks for
10 dozen pint bottles of lager beer and forward same to a
liquor house (a person to the jurors unknown) in Richmond,
Va., to be filled, which was done accordingly, and the
club's check was also sent to the liquor house for the
amount of the order, and the said beer was shipped by the
liquor house to the member in Charlotte in care of the
club, arriving on the -- day of --, 1910, was at once taken
charge of by the manager and put in the refrigerators and
mingled with the beer of other members, and on the same day
and for some days thereafter said club manager delivered
bottles of lager beer to said member out of the club's
refrigerators, received from said member beer coupons in
accordance with the club's regulations, and on until
the member had received 10 dozen pint bottles of lager beer
as a beverage--all of which was willfully done in the city
of Charlotte in prohibition territory; neither the club nor
its manager having at any time any license to sell lager
beer, and that said club was not the agent of said liquor
house from whom the beer was ordered any further than the
foregoing facts may as a matter of law make it the agent,
and that the club received no profit for its connection
with the transaction.
"The
jury for their special verdict say: We find the foregoing
facts; and, if on said facts the court is of the opinion
that the defendant is guilty, then we find the defendant
guilty as charged in the bill, and, if the court be of the
opinion that the defendant is not guilty upon such
findings, then we find the defendant not guilty."
The
following is a copy of the ticket given to the member upon
receipt at the club of the beer:
Bohemian
C. C.
No. 16798.
Deliver
one of the lot held for me.
No...
And the
following is the copy of the order blank referred to in the
special verdict:
No.
3369.
Ordered
by...
No.
3369, Charlotte, N. C.,...19...
Mess...
Gentlemen:
Please ship me by ...as follows: ...Ship Care The Colonial
Club.
Yours
truly, ...
Upon
the special verdict the court adjudged the defendant guilty
and imposed a fine of $500, and from its judgment the
defendant appealed.
MANNING
J.
Chapter
71, Pub. Laws Ex. Sess. 1908, the state-wide prohibition act,
having been approved by a majority of the voters of the state
at the special election held therefor, it is now unlawful for
any person or persons, firm or corporation, to manufacture or
in any manner make or sell or otherwise dispose of, for gain,
at any place within the state, any spirituous, vinous,
fermented, or malt liquors or intoxicating bitters. In the
disposition of this appeal, we are not concerned with the
manufacture or in any manner the making of the prohibited
liquors. The special verdict presents the question whether
the facts found constitute a sale by the defendant or an
otherwise disposition of the beer for gain. The words
"sale" or "sell" have a well-known legal
signification, and, in the absence of anything to the
contrary appearing in the statute, we must assume that they
were here intended to have that signification. This is a
generally accepted rule of statutory construction. Black on
Intoxicating Liquors, §§ 403, 406; Patterson v.
Galliher, 122 N.C. 511, 29 S.E. 773; Adams v.
Turrentine, 30 N.C. 147; State v. Gupton, 30
N.C. 271; State v. Barco, 150 N.C. 792, 63 S.E. 673;
36 Cyc. 1114.
The
word "sale" is thus defined: "A sale is a
transmutation of property from one man to another in
consideration of some price or recompense in value." 2
Blk. Com. 446. "It is a transfer of the absolute or
general property in a thing for a price in money." Benj
Sales, § 1. "A sale is the passing of the title
and possession of any property for money which the buyer pays
or promises to pay." Krnavek v. State, 38 Tex.
Cr. R. 44, 41 S.W. 612; People v. Law & Order Club,
203 Ill. 127, 67 N.E. 855, 62 L. R. A. 884; 7 Words & Phrases
Judicially Defined, 6291, 6292. In State v. McMinn,
83 N.C. 668, an indictment for retailing without license,
Judge Dillard, speaking for this court, said: "A sale is
the transmutation of the property in a personal chattel from
one to another on a quid pro quo, paid or agreed to be paid,
and such a change of property in the retail of spirituous
liquors by the small measure is usually effected by the
delivery of the article and the payment of the price
simultaneously, but it may be made in other modes. *** To
constitute a sale under the statute against retailing, there
is no necessity for a manual separation and delivery of the
parcel by the retailer to the customer, but it will be a
delivery sufficient in law if the keg, decanter, or other
vessel be so placed or prepared as that the customer can or
may, with the consent of the owner, draw for himself; and so,
likewise, the price paid in completing the sale need not be
paid into the hands of the proprietor, but it will be
equivalent if it be deposited for him in a place of his
appointment." State v. Kirkham, 23 N.C. 384;
State v. Bell, 47 N.C. 337; State v.
Simmons, 66 N.C. 622; State v. Poteet, 86 N.C.
612; State v. Taylor, 89 N.C. 577; 1 Mechem on
Sales, § 1. This learned writer says, in section 1: "The
essential elements here involved are that there must be (1) a
transfer, of (2) the general or absolute...