State v. Colonial Club

CourtUnited States State Supreme Court of North Carolina
Citation69 S.E. 771,154 N.C. 177
PartiesSTATE v. COLONIAL CLUB.
Decision Date14 December 1910

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.

To...

Order...

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.

Cameron Morrison, for appellant.

Attorney General Bickett, Geo. L. Jones, and Clarkson & Duls, for the State.

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...

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