Josey v. State

• Citation: 114 S.W. 216,88 Ark. 269
• Parties: JOSEY v. STATE
• Decision Date: 30 November 1908
• Court: Supreme Court of Arkansas

114 S.W. 216

88 Ark. 269

JOSEY v. STATE

Supreme Court of Arkansas

November 30, 1908

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge affirmed.

STATEMENT BY THE COURT.

Appellant was indicted for the crime of selling liquor without a license in Hempstead County, Arkansas, on the 19th day of October, 1907. Witness Lewis testified that he gave appellant an order for some whisky, gave him the money in the morning and in the afternoon appellant handed him a quart of whisky at the head of the stairs in the Opera House. The whisky was delivered to the witness in the town of Hope, Hempstead County, Arkansas, in October, 1907, before he went before the grand jury. The whisky was labeled to witness when he got it and he supposed it was like all the whisky he had ordered through express that way. He supposed the whisky had come when the train did. He saw a gentleman go over with the box and supposed that was the whisky. He went around and telephoned appellant about the whisky, and appellant handed it to witness as before stated. When witness gave Josey the money that morning, he said he thought he had time to get the order off on that train. The bottle was wrapped up and witness' name was on a card attached to the bottle. He received the whisky in the evening after the train arrived from Texarkana. That was the only order he ever gave appellant for whisky. Such was the evidence of the State. A witness on behalf of appellant testified as follows: "I live in Hope, Arkansas, and was running a butcher shop prior to October term of Hempstead Circuit Court, 1907. My shop was located on the first floor under the opera house. I received a box or package by express which contained two quarts of whisky. One bottle was labeled to me and one to W. G.

Lewis. This express package came addressed to either 'Lewis and Hamilton,' or 'Hamilton and Lewis,' and when I opened the package I carried the bottle labeled to Lewis up stairs, and turned it over to Mr. Josey. It was not mine, and I did not want it. I was expecting whisky that day, and went to the express office to get it. I had telephoned my order in for mine. It came from Texarkana Bank Saloon. Package addressed to Lewis and Hamilton. My quart had my name on it. I paid express charges 25 cents. I did not get my money back. I did not see him when he came after his, and I did not fool with it. I did not tell Mr. Josey to collect the express. I did not turn it over to Paul Briant because it was further up there than it was up stairs. Everything that came that way I would turn it over to Mr. Josey. Josey was not running an express office that I know anything about. I had not ordered any whisky through Mr. Josey and never had. I don't know why I thought Mr. Josey the proper party to turn this whisky over to. He had said nothing to me before about it. I did not wait for Mr. Lewis to come to me for his whisky. I wanted mine, and I took it out and left Mr. Lewis's with Mr Josey. I opened the package at my shop. I did not want to deliver the whisky to Mr. Lewis."

The court directed the jury to return a verdict of guilty. Appellant asked, and the court refused, the following prayer:

"If the jury believe from the evidence that the witness, Bill Lewis, met the defendant, William Josey, and handed him money, accompanied by the request to order for him the liquor mentioned in the indictment, and that the defendant accepted the money and sent the same to Texarkana, Texas, to a liquor dealer of that city, and that said liquor dealer at Texarkana put up, labeled and directed the package to Lewis, at Hope, Arkansas, and delivered the same to the express company at Texarkana, Texas, then the sale occurred at Texarkana and not at Hope, and you will acquit."

Appellant duly excepted to the rulings of the court, and seeks by this appeal to reverse the judgment.

Judgment affirmed.

Jobe & Carrigan, for appellant.

1. The sale occurred at Texarkana, and not at Hope. 43 Ark. 343; 51 Id. 153.

2. It was error to direct verdict for plaintiff. 6 Thompson on Neg § 7394.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee.

This case comes within the rule announced in 42 Ark. 275 and 41 Id. 355.

OPINION

WOOD, J. (after stating the facts.)

This court, in Herron v. State, 51 Ark. 133, 10 S.W. 25, held that "the delivery of goods to a carrier, when made in pursuance of an order to ship them, is in effect a delivery to the consignee." See also cases cited in the opinion.

This is upon the theory that the common carrier is the agent of the consignee who orders the goods shipped. See State v Carl, 43 Ark. 353, and cases cited. The rule with reference to a...