Fox v. United States

• Decision Date: 15 July 1929
• Docket Number: No. 2859.,2859.
• Citation: 34 F.2d 99
• Parties: FOX v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

34 F.2d 99 (1929)

FOX v. UNITED STATES.

No. 2859.

Circuit Court of Appeals, Fourth Circuit.

July 15, 1929.

J. Raymond Gordon, of Charleston, W. Va. (T. J. Lilly and P. J. Carr, both of Hinton, W. Va., on the brief), for appellant.

Ellis A. Yost, Asst. U. S. Atty., of Huntington, W. Va. (James Damron, U. S. Atty., and Edmund Marshall, Asst. U. S. Atty., both of Huntington, W. Va., on the brief), for the United States.

Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.

PARKER, Circuit Judge.

One J. A. Fox, hereinafter referred to as defendant, was convicted in the court below under an information charging a sale of intoxicating liquor to one Harry Allen. From a judgment sentencing him to six months' imprisonment, he has appealed to this court; and the principal question before us is whether there was any evidence to support the conviction.

The facts in the case may be briefly stated. One Eagle, a United States commissioner, for the purpose of obtaining evidence against the defendant, gave $5 to Allen, with instruction to make a purchase of liquor from him. Before approaching defendant, Allen informed him through an attorney of the plan which was being laid to entrap him. Allen thereafter saw defendant, gave him the $5, and arranged that liquor was to be delivered to him on the road near Hinton, W. Va., by some unidentified third person. Defendant took the $5 and delivered it to the clerk of the circuit court of Summers county at Hinton, with request that it be given to the King's Daughters, a charitable organization. He then filled a fruit jar with spring water in the presence of witnesses, and, taking it and the witnesses in his automobile, went to the agreed point on the Hinton road. There his car was searched by officers, the fruit jar of water was found, and he was placed under arrest.

Upon these facts, we think it clear that the trial judge should have directed a verdict for defendant. In the first place, not only was there no delivery of liquor, but, according to the undisputed evidence, there was no intention on the part of the defendant to deliver any. It appears, without contradiction, that, although defendant accepted the $5 from Allen and stated that liquor would be delivered, he had already been apprised of the trap which was being laid for him and did not intend to deliver it, as Allen well knew. A sale involves a contract, a meeting of the minds of the parties; and where, as here, there was no real contract or agreement that liquor was to be sold, defendant would not be guilty of making a sale. Scoggins v. U. S. (C. C. A. 8th) 255 F. 825, 3 A. L. R. 1093.

In the second place, there was no delivery of liquor by the defendant or by any one acting in his behalf. The statute (27 USCA § 12) provides that, "no person shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor," etc., and the violation of the statute with which defendant is charged is selling. An executory contract to sell might, in a proper case, constitute a conspiracy to violate the act (see U. S. v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986); but there could not be a sale in violation thereof unless the sale were completed by delivery either actual or constructive, which is not present in this case. "The offense of illegally selling liquor is not committed by a bargain or executory contract for a sale. There must be a completed sale, which passes the property, consummated by the act of the parties as distinguished from the operation of law, and amounting to a vending and purchasing of the particular commodity." 33 C. J. 591; Filiatreau v. U. S. (C. C. A. 6th) 14 F.(2d) 659; State v. Davis, 62 W. Va. 500, 60 S. E. 584, 14 L. R. A. (N. S.) 1142; Commonwealth v. McDermott, 96 S. W. 475, 29 Ky. Law Rep. 752; White v. State, 47 Tex. Cr. R. 551...