State v. Four Jugs of Intoxicating Liquor

• Decision Date: 05 February 1886
• Citation: 2 A. 586,58 Vt. 140
• Parties: STATE v. JOHN O'NEIL. SAME v. JOHN O'NEIL. SAME v. FOUR JUGS OF INTOXICATING LIQUOR; NATIONAL EXPRESS CO., CLAIMANT. SAME v. SIXTY-EIGHT JUGS OF INTOXICATING LIQUOR; NATIONAL EXPRESS CO., CLAIMANT
• Court: Vermont Supreme Court

2 A. 586

58 Vt. 140

STATE v. JOHN O'NEIL.

SAME v. JOHN O'NEIL.

SAME v. FOUR JUGS OF INTOXICATING LIQUOR; NATIONAL EXPRESS CO., CLAIMANT.

SAME v. SIXTY-EIGHT JUGS OF INTOXICATING LIQUOR; NATIONAL EXPRESS CO., CLAIMANT

Supreme Court of Vermont, Montpelier

February 5, 1886

These cases were heard together. In the first case. No. 27, the respondent was charged with selling intoxicating liquors contrary to law; in the second case, No. 28, with keeping intoxicating liquors with intent to sell, etc. The other two cases, Nos. 25 and 26, were proceedings for the condemnation of intoxicating liquor. The cases are appeals from a decision of a justice of the peace. The first two cases were tried by jury, March Term, 1883, Rutland County, VEAZEY, J presiding. In the first case the jury returned a verdict that the respondent was guilty of 307 offenses; in the second case, that the respondent was guilty. In the first case, the court adjudged that the respondent was guilty of 307 offenses of selling intoxicating, liquor without authority as of a second conviction; in the second case, the court adjudged that the respondent was guilty of the offense charged, as of a second conviction. Sentence and execution were respited and stayed; and the cases were passed on exceptions to this court. The other two cases were tried by the court on an agreed statement, at the same term, in Rutland County VEAZEY, J., presiding. In No. 25, the court overruled the claims of the claimant, the said National Express Co., and adjudged that the said liquors be forfeited; and in No. 26 the court adjudged that the liquors, which were paid for to the shipper at Whitehall, N. Y., be returned to the claimant and remainder of the liquors be forfeited. These cases were numbered on the court docket 25, 26, 27, and 28. No. 27 was a prosecution for selling liquor; No. 28, for keeping it, etc.; No. 25 was a proceeding to condemn and forfeit four jugs of intoxicating liquors shipped by Shehan & Co., dealers in liquors and cigars at Troy, N. Y.; and No. 26 was a like proceeding to condemn and forfeit liquors shipped by the respondent. O'Neil, a dealer in liquors and cigars at Whitehall, N. Y. Section 2 of No. 43 of the Acts of 1882 is "In all cases where now, by any of the provisions of said chapter [169 R. L.], an officer is authorized to seize intoxicating liquors or the casks or vessels containing the same, by virtue of a warrant therefor, he may seize the same without a warrant, and keep the liquors, casks, or vessels so seized in some safe place, and shall forthwith procure such warrant, and he shall thereupon make return of his doings under said warrant in the same manner as he would have done had the issuing of the warrant preceded such seizure." Section 3818 R. L. is: "If three voters in a town make complaint, under oath or affirmation, before a justice in the county, that they have reason to believe and do believe that intoxicating liquor is kept or deposited in a dwelling house, store, * * * or other building or place in said town, and intended for sale, or distribution among others, by a person not authorized to sell or distribute the same, said justice shall issue a warrant to any sheriff or constable to search the premises described in such complaint; and if intoxicating liquor is found therein under circumstances warranting the belief that it is intended for sale or distribution contrary to the provisions of this chapter, such officers shall seize the same." etc. The respondent admitted on the trial for selling liquor, that he was a wholesale and retail dealer in wines and liquors at Whitehall, N. Y., and that he had been engaged in business there for more than three years; that his said business was lawful in the State of New York; and that during said time he had received at his store in Whitehall, three hundred and seven separate and distinct orders by mail, telegraph, and express for specified and designated small quantities of intoxicating liquors from as many different parties residing in Rutland in the State of Vermont. It was further admitted by the respondent: "The orders so sent by express were in the form of a letter addressed to the said John O'Neil at Whitehall, aforesaid, and the letter attached to a jug, and the jug with the letter attached was delivered by said parties to the National Express Co. in Rutland; and charges thereon paid by the parties so sending the order. Orders sent by mail were by letters or postal cards, deposited in the post-offices at said Rutland, directed to John O'Neil at Whitehall, New York, and postage paid thereon. Orders sent by telegraph were delivered by the sender at the telegraph offices in said Rutland, directed to said John O'Neil, Whitehall, N. Y., and charges paid by the sender--which orders requested the respondent to send said intoxicating liquors to the parties ordering the same at said Rutland; and in more than one half the number of instances, said orders directed him to send said liquors by express, C. O. D.; and in the other instances, where the orders did not specify, it was the intention of the purchaser to have the goods so sent to him. It is the usual course of trade for merchants, receiving an order from a considerable distance for goods in small quantities, to send the same by express, C. O. D., when the order is not from a regular customer, or a party of known responsibility. That upon the receipt of said orders, the respondent has, in each case, measured out the liquors called for in the order at his store in Whitehall aforesaid, and packed the same in jugs or other vessels and attached to each package a tag, upon which was written the name and address of the party ordering the same, and delivered each package so directed and addressed, at Whitehall, aforesaid, to the National Express Co., a New York corporation, a common carrier, doing business between New York and Montreal, and including the route between said Whitehall and said Rutland; and each of said packages also had upon said tag the named and business card of the respondent; and none of said packages were in any manner disguised, and all of them were sealed with wax. It was not stated on the jugs or tags what they contained.

"The respondent at the same time delivered to said express company a bill of said liquor; which said carrier placed in an envelope, marked C. O. D., which envelope had indorsed thereon among other things the following instructions: 'Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. Be careful to notice what money you receive, and, as far as practicable, send the same as received and follow the special instructions of the shipper, if any are given on the bills. If goods are refused, or the parties cannot be found, notify the office from whence received with names and dates, and await further instructions.' Meaning thereby that said express company should receive the amount of said bill upon the delivery of the package to the consignee, and that without payment to said bill the said liquor should not be delivered. That in the usual and ordinary course of business of said carrier in such cases, the said express company delivered each of said packages to the consignee named upon said tag at Rutland, and at the same time and concurrently with such delivery received the amount of the said bill in the C. O. D. envelope, the amount of freight for the transportation of said package from Whitehall to Rutland, and the charges for returning said money to the respondent at Whitehall. The express company placed said money for the payment of said bill in the same envelope and returned it to the respondent at Whitehall. The respondent did nothing to or with said liquors after the said packages were delivered by him at said Whitehall to said common carrier; and the said several consignees received the same and made payment as aforesaid at Rutland; as and under the contract made as aforesaid through their said orders so sent to the respondent at Whitehall. That it is the usual and ordinary course of business of said express company, in case goods are refused, or the consignees cannot be found, for the office to which goods are sent to notify the office from which they were shipped to notify the consignor of the facts, and the consignor would be consulted and his orders taken and followed as to the disposition of the goods. And this would be the same whether goods were sent C. O. D. or otherwise. The respondent gave no special directions as to any of the packages shipped as aforesaid."

The respondent requested the court to instruct the jury that the facts set forth in said admission did not constitute an offense against the statute under the complaint in this cause. The court declined to so hold, to which the respondent excepted. The respondent also requested the court to instruct the jury that, under the facts set forth in said admission they ought to find the respondent not guilty. The court refused to so instruct the jury; to which the respondent excepted. The court charged the jury that if they believed the facts set forth in said admission to be true, that the same made a case upon which the jury should find a verdict of guilty against the respondent. To all which the respondent excepted. After the verdict was returned into court, the state's attorney offered in evidence a record, showing that at the March Term of Rutland County Court, 1879, this respondent was convicted of selling, furnishing, and giving away intoxicating liquors. This evidence was offered for the purpose of showing a former conviction as set forth in the complaint. The respondent objected to this evidence upon the ground that the former conviction set forth in the complaint, and offered to be proved by the...