State Oe West Va. v. Hughes.

• Decision Date: 07 July 1883
• Citation: 22 W.Va. 743
• Court: West Virginia Supreme Court
• Parties: State oe West Virginia v. Hughes.

22 W.Va. 743

State oe West Virginia

v.Hughes.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1888

Decided July 7, 1883.

A partner of a wholesale and retail licensed dealer in spirituous liquors in Wood county visits Taylor county, and there solicits orders on his firm for whisky. The whisky to fill these orders is shipped in jugs by the Baltimore &Ohio railroad, beingdeliv- ered by the firm to an express agent in Wood county for transportation to the purchasers in Taylor county. They receive the whisky in Taylor county and pay the express-charges, and subsequently, when on a visit to said county of Taylor, this partner collects in Taylor county of these parties the price, which had been agreed upon for this whisky. Held:

This partner cannot be indicted in Taylor county for selling spirituous liquors without license, as on this state of facts the sales were made in Wood county, when the jugs of whisky were delivered to the express-agent. Until then there was only an executory contract for the sale of the whisky, and the sale became complete and the property in the whisky was transferred to the purchasers when it was delivered to the express-agent for transportation, and not when it was received of the express-agent by the purchasers, (p. 749.)

Green, Judge, furnishes the following statement of the case:

The grand jury of Taylor county on the 27th day of July, 1881, presented Thomas Hughes for unlawfully and without a State license selling, offering and exposing for sale at retail in December, 1880, spirituous liquors, wine, porter, ale, beer and drinks of like nature to Edward L. Gelhousen. The defendant demurred to the presentment, but it being in proper form the demurrer was overruled, and the defendant then moved to quash the presentment, but there being no ground for quashing the same the court overruled this motion; and thereupon the defendant pleaded not guilty, and issue was joined. On April 8, 1882, this issue was tried and the jury found a verdict for the defendant, whereupon the State moved the court to set aside this verdict and grant tier a new trial, which motion the court overruled. The record states, that the State, during the trial took two bills of exceptions, which were signed and made a part of the record. The first bill of exceptions is as follows:

bill oe exceptions no. 1.

"Be it remembered that upon the trial hereof, and before the jury had retired from the bar of the court to consider of their verdict, the defendant moved the court to give to the jury each and all of the following instructions, to-wit:

First. The jury are instructed that in order to sustain the indictment in this case, the State must prove beyond all doubt that the liquors charged to be sold in the indictment were sold to E. M. Gelhousen. And the jury are further instructed that it is the duty of the State to prove beyond a reasonable doubt not only that the liquor vras sold to E. M. Gelhousen, but that it was sold and delivered to him in Taylor county, West Virginia, by the defendant, Thomas Hughes.

Second. The jury are instructed that if they believe from the evidence that the defendant was, at the time of the alleged offence, a traveling salesman for Thos. Hughes &Co., merchants doing business in the county of Wood, and that said firm had a license to sell spirituous liquors in Wood county, and that said defendant, as such salesman, came to the county of Taylor soliciting orders for his said firm, and that the said E. M. Gelhousen, named in the indictment, directed the said defendant to send him a quantity of spirituous liquors, and that said defendant took said order and conveyed it to his said firm in Wood county, and that said firm, after inspecting the order, did, in Wood county, fill the same by putting up a package of liquors as ordered by said Gelhousen, and did address the same by card to the said Gelhousen at Grafton, Taylor county, and that said firm of Thomas Hughes & Co. did deliver said package so filled and addressed to the B. & 0. R, R, or B. & 0. R. Express Co., in the county of Wood, then the jury are further instructed they must find the defendant not guilty.

Third. The jury are instructed that if they believe from the evidence that the liquors alleged to have been sold in Grafton, Taylor county, were ordered by Gelhousen in Taylor county, ordered from Thos. Hughes & Co., who are licensed liquor dealers in Wood county, through the agent and salesman of said house, and that said liquor was drawn from a large bulk of liquors and separated, marked and delivered in Wood county, addressed to the said Gelhousen in Taylor county, then it is a sale in Wood county, and the jury must find the defendant not guilty."

Fourth. The jury are instructed that although orders for goods have been received, yet until the goods are separated and set apart and transferred to the purchaser, the sale is incomplete; and if the jury believe from the evidence that the liquors ordered by Gelhouscn in this ease were put up by Thos. Hughes & Co. and delivered to the B. & 0. Express Company in Wood county, in pursuance of Gelhousen's order given to their salesman in Taylor county, then it was a sale at the county of Wood and the jury must find the defendant not guilty.

Fifth. The jury are instructed that if they believe from the evidence, that the defendant Thomas Hughes was in fact the salesman ot Thomas Hughes & Co. at the time the order was given by Gelhousen to him, and was not soliciting orders for himself, then the fact of whether he was known to the said Gelhouscn as such salesman or not is immaterial, and if they believe the said defendant, after receiving said order from said Gelhousen, sent the same or gave it in person to Thos. Hughes & Co. in Wood county, and that said order was accepted by said firm and filled and the goods delivered to a common carrier in Wood county, then it was a sale in Wood county and not in Taylor county, and the jury must find the defendant not guilty.

Sixth. The jury are instructed that the place of sale of personal property is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who for the purpose of delivery represents the purchaser. So, if the jury believe from the evidence, that the liquor ordered by Gelhousen was put up in a package in Wood county, where the firm of Thomas Hughes & Co. were engaged in business at the time, and were delivered by the Baltimore and Ohio Express Company, a common carrier in said Wood county, then and in that event it was a sale in Wood county and not in Taylor county, and the jury must find the defendant not guilty.

To the giving of said instructions, and each of the said instructions, the State, by John T. McGraw, her attorney, objected, which objection the court overruled, and gave the said instructions to tire said jury, to which action of the court in giving each of the said instructions, the State by her said attorney, excepted, and now here tenders this her bill of exceptions, which she prays may be signed, sealed and made a part of the record, which is now here accordingly done.

There is then copied into the record brought to this Court what is called bill of exceptions No. 2. It purports to be a bill of exceptions taken by the State to the overruling of the motion made by it for a new trial, and it certifies all the evidence given at the trial. It proved, that Gelhousen, about August 26, 1880, either by letter addressed to the defendant, Hughes, at Parkersburg, "Wood county, West Virginia, where said Hughes resides and is there a partner of the firm of Thomas Hughes & Co., or by seeing said Hughes in Grafton, in Taylor county, West Virginia, ordered him to send to Gelhousen a gallon of whisky. The said Thomas Hughes & Co. having a licence in Wood county, West Virginia, as wholesale and retail liquor dealers, legally selling spirituous liquors in Parkersburg, where their store was. Thomas Hughes, the defendant for the said firm, made periodical trips over the Baltimore and Ohio railroad from Parkersburg as far east as Grafton, in Taylor county, seeking orders on his firm for whisky; if he gets such orders lie makes a memorandum of them in an order-hook, which lie carries with him. This order is copied in an order-book kept by the firm of Thomas Hughes & Co. at their store in Parkersburg, and if these orders are approved by the firm, they are filled by drawing the whisky from a vessel, in which their whisky is kept in bulk in Parkersburg, and the quantity thus ordered being thus separated from the bulk it is delivered to the carrier in Parkersburg, and shipped by the Baltimore and Ohio railroad. The above gallon of whisky ordered of Thomas Hughes was received in this manner by Gelhousen, who resides in Grafton. At some time within twelve months before said presentment Gelhousen met Thomas Hughes in Grafton, in Taylor county, and ordered of him a gallon of whisky, and shortly afterwards he received this whisky in a sealed jug from the agent of the express company in Grafton, and he paid the express charges to this agent of the express company for the transportation, and afterwards meeting Thomas Hughes in Grafton on September 21, 1880, he paid him three dollars and fifty cents for this jug of whisky. Thomas Hughes has no whisky of his own, and sells it only as a member of the firm of Thomas Hughes & Co., and for this firm.

In the record as presented to us this bill of exceptions has not appended to it the signature of the judge, though on the face of the record entry on the record-book it is stated, that bill of exceptions No. 2 was signed. We have not deemed it necessary to have a certiorari to ascertain, whether this absence of this signature is a clerical omission or not. It is probable that it is a clerical error, as neither of the counsel in this case called any attention to this absence of such signature. We deem it unnecessary to delay the decision in this case to...