State v. Flanagan.
| Decision Date | 21 June 1898 |
| Citation | 38 W.Va. 53 |
| Court | West Virginia Supreme Court |
| Parties | State v. Flanagan. |
1 ntoxicating Liquors Venue INDICTMENT
A party residing in Doddridge county sends a postal card through the mail to a licensed wholesale liquor dealer doing business as such in Wood county, directing a package of whisky to be sent him by express C. O. D. The order thus sent having been received in Wood county, and having been complied with by delivering the package marked C.O.D., addressed to the purchaser in Doddridge county, held, that under the circumstances the sale was made in Wood county, and said wholesale merchant was not liable, under indictment in Doddridge county, for retailing liquors without license in Doddridge county.
Attorney-General T. 8. Riley for the State, cites 27 W. Va. 75; 26 Fed. Rep. 515; 9 At. Rep. 829; 23 Fed. Rep. 134; 15 S. E. Rep. 455; Hutch.Carr.389;22 W Va 742.
John Bassell for defendant in error cited St. v. O'Neill 58 Vt.; 78 N. Y. 52; Benj. Sales §§ 381-399; 11 Am. Rep. 118; 2 Kent, Comm. 492; 13 Am. Dee. 181; 9 Am. Rep. 205; 12 Am. Rep. 140; 23 W. Va. 743; 102 Mass. 70; 96 Pa. St. 449; Benj. Sales (1st Am. Ed.) §§ 130, 514 (Bennett s Ed.& 181);71 Ala 368;73 Me.278;57Me.157 130 Pa.St.138;51 Am.Rep. 565; 24 Me. 89; 1 Pars. Cont. 525; Eng. & Am. Ency. Law 289.
English, President:
At the November term in the year 1890, W. H Flannagan was indicted in the Circuit Court of Doddridge county for unlawfully selling spirituous liquors in said county without having obtained a license therefor as required by law. A motion was made to quash the indictment, which was overruled. The plea of not guilty was interposed. Issue was joined thereon, and the matters arising thereon were submitted to a jury, which resulted in a verdict of not guilty," whereupon the attorney for the State moved the court to set aside the verdict of the jury, and grant the State a new trial, because said verdict was contrary to the law and evidence, which motion was overruled, and the State excepted and tendered three bills of exceptions, which were signed, sealed and saved to it and made a part of the record in the cause.
The facts, upon which said indictment was predicated, and about which there appears to be no controversy, are set out in said first bill of exceptions as follows:
the 17th day of September, 1890, H. McCally, a resident of West Union, Doddridge county, W. Va. mailed to the defendant, W. II. Flanagan, a duly-licensed wholesale and retail dealer in spirituous liquors at Parkersburg, Wood county, W. Va., not licensed in said Doddridge county, a written order or postal card to send him (McCally) one half gallon of whiskey, collect on delivery; that said defendant received said order and caused said spirituous liquors so ordered to be packed and delivered to the express agent at Parkersburg with instructions to express same to the said McCally at West Union, C.O. D., or collect on delivery, to West Union; that the same was so expressed and received by said McCally at West Union from the express agent, B. II. Maul shy, and that said agent returned the price of said liquor one dollar and fifty cents paid by the said McCally to the said agent at West Union, Doddridge county, to the said defendant at Parkersburg; and that he received the same which were all the facts shown in evidence to the jury on said trial, and thereupon the prosecuting attorney of Doddridge county moved the court to instruct the jury that under the state of factsabove detailed, reciting them, if they believed them beyond all reasonable doubt, they must find the defendant guilty as charged in the indictment; but the court refused to give said instruction, and the State excepted, and thereupon the defendant asked the court to instruct the jury that, if they found from the evidence the facts above detailed, they should find for the defendant, to the giving of which instruction the State by its attorney objected, but the court overruled said objection, and gave said instruction, and the State excepted; and, the jury having found a verdict for the defendant, the attorney for the State moved to set aside the verdict because the same was contrary to the law and the evidence, which motion was overruled, judgment was rendered upon the verdict, and the State applied for and obtained this writ of error."
The action of the court with reference to said instructions and upon said motion to set aside the verdict of the jury is assigned and relied upon as error. In order to reach a correct conclusion in this case, it is necessary to determine where this sale was made. The defendant is charged with selling spirituous liquors in the county of Doddridge, without a license; and, if the proof shows the sale to have been made in the county of Wood, he is not guilty of the offence charged, and should have been acquitted. This indictment does not charge the defendant with soliciting orders for whiskey in Doddridge county, and, if it did, the charge would not be sustained by the proof. It merely charges an unlawful selling without a license in the county of Doddridge.
The order for the whiskey was sent by postal card through the mail. The knowledge that the wdiiskey was desired was communicated to the defendant, Flanagan, by the postal card after it was taken from the post office in Wood county. He then received the order in Wood county, and complied with it in Wood county, by packing the whiskey and delivering the same to the express agent in said county. It is true the package was sent C. O. D., but that only authorized the express agent to receive the purchase-money on delivering the package. The postal card directed the package to be sent; by express, C....
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