Berger v. State

• Decision Date: 03 December 1887
• Citation: 6 S.W. 15
• Parties: BERGER <I>v.</I> STATE.
• Court: Arkansas Supreme Court

6 S.W. 15

BERGERv.

STATE.

Supreme Court of Arkansas.

December 3, 1887.

Appeal from circuit court, Hot Spring county; J. B. WOOD, Judge.

G. W. Murphy, for appellant. Dan. W. Jones, Atty. Gen., for appellee.

COCKRILL, C. J.

Berger, the appellant, is a merchant at Malvern, a town where no license can be issued for the sale of intoxicating liquors. Lederer & Bro. were licensed liquor dealers at Donaldson, a station in the same county, on the same line of railway, but not within the territory where the sale of liquor is prohibited. Persons at Malvern who wanted Lederer's liquors would leave orders for what they desired with Berger, who would forward them to Donaldson to be filled. The Lederers, except in rare instances, accepted the orders; placed the liquors designated in each in a bottle or jug labeled with the name of the person giving the order; put the bottles or jugs into a box, which was kept for the purpose, locked the liquor in, and delivered the box to the railway company, addressed to Berger. Berger was provided with a key, and when the box was received he would remove the contents and return it by rail, empty, to the Lederers, to be used as before. This occurrence was oft repeated, the box going and returning with such frequency that one witness, who was hired by the Lederers to carry it to and from the depot, at Malvern, said it was almost daily. The bottles and jugs thus received by Lederer were delivered by him on demand to the person indicated by the labels. It does not appear that Berger was in any way interested in the Lederers' business at Donaldson, or that he was expressly authorized by them to do more than transmit orders and deliver such liquor as they saw fit to send him, and he received no remuneration for his services. John Carmichael, on two occasions, ordered and received whisky from the Lederers through Berger at Malvern in the usual way, viz., as above indicated. On one of the occasions Berger delivered the liquor to Carmichael, without receiving the purchase price; and on the other refused at first to receive it, explaining that he had nothing to do with the sale, but he finally accepted it for the Lederers upon Carmichael's suggestion that it would be a favor to him, as it would save him the trouble and risk of transmitting it. He had pursued the same course in his dealing with others. The grand jury indicted Berger for selling ardent spirits at Malvern to Carmichael. All the facts above detailed were put in evidence. Berger was found guilty, and has prosecuted this appeal from the judgment of conviction. His contention is that the facts show that the sales were made by the Lederers, and became consummated at Donaldson upon the delivery of the liquor to the common carrier at that point.

This would be true if the Lederers, after selecting the goods ordered, had consigned them to the carrier for the purpose of being delivered by it to Carmichael. That would have shown a palpable appropriation of the articles selected to the contract of sale; the carrier would be regarded as standing in the place of the buyer for the purpose of delivery; the property would have vested in him at Donaldson, the place of shipment, and the sale would have become complete there. Oil Co. v. Boyett, 44 Ark. 230; Carl v. State, 43 Ark. 353; Frank v. Hoey, 128 Mass. 263; Webber v. Howe, 36 Mich. 150; Broothby v. Plaisted, 51 N. H. 436; Sarbecker v. State, 65 Wis. 171, 26 N. W. Rep. 541; Garbracht v. Com., 96 Pa. St. 449. No offense would then have been committed, for the Lederers were licensed dealers at Donaldson, and the act there was lawful. To sustain the judgment, it must appear that the sale was consummated,...