State v. Fisher
| Citation | 77 S.E. 121,162 N.C. 550 |
| Parties | STATE v. FISHER et al. |
| Decision Date | 07 February 1913 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Craven County; H. A. Foushee, Judge.
John H Fisher and another were indicted for unlawfully selling liquor. From a judgment of acquittal, the State appeals. Affirmed.
Act of bank in collecting draft for price of interstate shipment of whisky, held an act of interstate commerce, and not a violation of the laws of this state regulating the sale of intoxicating liquors.
The three defendants, Mutual Aid Banking Company, John H. Fisher and A. Hatke, were indicted in the court below for unlawfully selling liquor, the indictment containing two counts, one for selling intoxicating liquor to a person to the jurors unknown, and the other for selling such liquor to Carl Spencer, a person under the age of 21 years. The defendant A Hatke, a member of the firm of A. Hatke & Co., of Richmond Va., wholesale liquor dealers of that city, was not on trial and the other defendants severally pleaded "not guilty" to the bill, when arraigned for trial. After the evidence was heard, the jury rendered a lengthy special verdict, the material findings of which are as follows: The Mutual Aid Banking Company was at the time stated in the bill engaged in the ordinary business of banking in the city of Newbern, and John H. Fisher was its cashier. A short while before March 29, 1911, Carl Spencer, who is a minor or person under 21 years of age, and unmarried, ordered from A. Hatke & Co. of Richmond, Va., through their agent, who was in Newbern, one case of whisky, to be shipped over the connecting lines of the Seaboard Air Line Railway Company and the Norfolk Southern Railway Company to him at Newbern. Hatke & Co. delivered the one case of whisky called for in the order to the Seaboard Air Line Railway Company at Richmond for shipment to Newbern, consigning the same to the order of themselves, "destination Newbern, N. C., notify Carl Spencer at that place," and received from the agent of the Seaboard Air Line Railway Company a bill of lading for the liquor in the usual form. They then drew a draft on Carl Spencer for $8.25, the price of the liquor, and attached it to the bill of lading, mailing the two papers to the Mutual Aid Banking Company for collection. The liquor was shipped over the lines of the two railroad companies, and the Norfolk Southern Railway Company duly notified Carl Spencer at Newbern of its arrival there, and that it would be held subject to charges for storage and demurrage. On the day this notice was given, Carl Spencer called at the banking house of defendant, inquired for the draft and bill of lading, and was told by the cashier, John H. Fisher, or his assistant, that the papers were there. The bank and its officers knew that the draft was for the price of the liquor, and that the bill of lading had been given by the railroad company for the package containing it. With this knowledge the bank and its cashier, John H. Fisher, received payment of the draft from Carl Spencer, and delivered the papers to him, whereupon he handed the bill of lading to the Norfolk Southern Railway Company at Newbern, and received the package of whisky from it in the usual manner of its other customers. Before Carl Spencer paid the draft to the bank, his uncle notified John H. Fisher that he was a minor and unmarried, and requested him not to receive payment of the draft from him, with which request he declined to comply. The Mutual Aid Banking Company was incorporated under the laws of this state, and authorized to conduct in Newbern a general banking business, and was doing so at the time of this transaction. A. Hatke & Co. are regular wholesale dealers in liquor, having their home and place of business in Richmond, Va.
The special verdict concludes as follows: "If from the foregoing facts the court shall be of opinion that in law the said defendants, John H. Fisher and the Mutual Aid Banking Company, were dealers in intoxicating drinks and liquors, and that the said delivery of the said draft and bill of lading to said Carl Spencer was a sale of a quantity of such drinks and liquors, then we, the jury, do find the defendant, John H. Fisher and the Mutual Aid Banking Company, guilty, in manner and form as charged in the bill of indictment; otherwise, we, the jury, find the defendants not guilty." The court (Judge Foushee, presiding) being of opinion upon the verdict that defendants were not dealers in liquors, and that the transaction described in the verdict did not constitute a sale to Carl Spencer, as charged in the indictment, directed a verdict of not guilty as to both defendants upon the said indictment, and, judgment being entered thereon for them, the state appealed.
Attorney General Bickett and T. H. Calvert, of Raleigh, for the State. Guion & Guion of Newbern, for Fisher. Moore & Dunn, of Newbern, for Banking Company.
WALKER, J. (after stating the facts as above).
It is conceded, as we understand, that the special verdict was returned upon the second count, and there is no verdict upon the first count. It was held in State v. Taylor, 84 N.C. 773, that: "Where the jury find a defendant guilty on one count, and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of acquittal as to them." The second count of the indictment was framed on Revisal, § 3524, which provides that: The jury, by their verdict, after finding and stating certain facts, which we have already set out, submit to the court whether, upon those findings, the court is of the opinion that in law the defendants were dealers in intoxicating drinks and liquors, and that the acts of defendants constituted a sale of such drinks and liquors, and both questions the court decided in the negative. The verdict of the jury, therefore, was confined to the particular offense made criminal by Revisal, § 3524, and they have not rendered a verdict for any other crime, nor have they considered the case in any other aspect. It follows that the defendants have been acquitted of the charge upon which the jury passed.
The section of the Revisal upon which the indictment was drawn, not only describes the act of selling, which is unlawful, as one committed by a "dealer in intoxicating drinks or liquors," but also defines a "liquor dealer" as "a person who keeps on hand intoxicating drinks or liquors for the purpose of sale and profit." The business of the defendants is not embraced by these words. They were engaged in the business of banking, and were, in no sense, sellers of liquors or dealers therein. There is no finding of fact that they ever sold liquor of any kind or in any quantity, large or small, or that they, or either of them, ever kept "liquor on hand for sale or profit." State v. Lawrence, 97 N.C. 492, 2 S.E. 367; State v. McBrayer, 98 N.C. 619, 2 S.E. 755. When they received the money from Carl Spencer and delivered the draft and bill of lading for the package of liquor to him, they were engaged in the ordinary and usual business of banking. So that the state failed to show that the defendants were guilty of the specific offense charged against them. The court properly instructed the jury as to the law, and the verdict of acquittal, rendered by the jury in accordance therewith, cannot be disturbed.
But assuming that the defendants, upon the facts stated in the special verdict, must be regarded in law as having assisted in making or consummating the sale of the liquor by A. Hatke & Co. to Carl Spencer, we do not think the case is made any stronger for the state. The sale of the liquor to Carl Spencer by A. Hatke & Co. was interstate commerce, and could not be affected by the criminal laws of the state. With every disposition to enforce strictly and rigidly the laws of our state prohibiting the sale of liquor, in all cases to which they apply, we must, at the same time, give full force and effect to the provision of the federal Constitution, which confides to Congress alone the regulation of interstate commerce. It has been enacted by Congress that liquor shipped from one state into another in the course of interstate commerce shall, after its "arrival" in the latter state, be subject to its laws. This law was passed August 8 1890 (Act Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]), and is known as the Wilson Act (3 Fed. Statutes Anno. p. 853), and it has also forbidden a common carrier to collect, directly or indirectly, the purchase money for any liquor shipped over his line from one state to another; the carrier being restricted by the terms of the act of Congress to "the actual transportation and delivery of the same." Federal Penal Code, § 239 (Act March 4, 1909, c. 321, 35 Stat. 1136 [U. S. Comp. St. Supp. 1911, p. 1662]). It is not contended that either of these acts would sustain the conviction of the defendants under our law prohibiting the sale of liquor in the state, except in so far as the Wilson Act allows the local law to operate after the arrival of liquor in the state, and withdraws from the protection of the federal laws, to that extent, sales in original packages. The other act, federal Penal Code (section 239) declared...
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