State v. Lockyear

• Decision Date: 31 October 1886
• Citation: 59 Am.Dec. 287,95 N.C. 633
• Court: North Carolina Supreme Court
• Parties: STATE v. FRED T. LOCKYEAR.

95 N.C. 633

59 Am.Dec. 287

STATE

v.FRED T. LOCKYEAR.

Supreme Court of North Carolina.

October Term, 1886.

INDICTMENT, tried before Philips, Judge, at July Criminal Term, 1886, of WAKE Superior Court.

The facts fully appear in the opinion.

The defendant appealed.

Messrs. Geo. V. Strong and J. H. Flemming, for the State .

Messrs. Charles M. Busbee and R. H. Battle, for the defendant .

SMITH, C. J.

The defendant is indicted for selling spirituous liquor in the township of Raleigh, in violation of §3116 of The Code, and upon the trial of his plea of not guilty, the jury in a special verdict find as follows:

That at an election regularly called and held in Raleigh Township, Wake county, on the first Monday in June, 1886, under the provisions of chapter 32, volume 2, of The Code, to ascertain whether spirituous liquors might be sold in said township, a majority of the qualified voters of said township cast votes on which was written the word “Prohibition,” and the result of said election was in favor of prohibition, and the same was duly declared on the second day after said election by the authorities duly empowered so to do; and that no election has since been held reversing said election.

2. That the defendant is an employé and steward of an organization existing in the city of Raleigh called “The Capital Club,” and in that name duly incorporated under the general law, in 1885, for literary and social purposes.

3. That the said organization has nearly one hundred resident members, the full membership being limited to one hundred and twenty-five, and a few non-resident members. Under the constitution and laws of said Capital Club, no person can gain admittance to the rooms of said club, except the members thereof, or such friends of the members as live outside of Raleigh township, and are especially invited and introduced in the club; and that the leading magazines and papers are kept in the reading room of said club; and while there are no lodging rooms in the club except for its servants, some of its members spend a large portion of their time there daily.

4. That among other things, and incidental to the main purpose of the organization, the club furnishes refreshments to its members, such as liquors, cigars and meals, for their convenience and accommodation, and a small stock of spirituous liquors, wines and beer, is kept on hand and furnished to the members at a price fixed by the house committee of the same, and intended to be just sufficient to cover the cost; that the object of this is not to make profit upon the liquors, wines and beer so furnished, and the price at which they are dispensed does not cover their cost and the expenses attendant upon keeping and serving the same, and part of the initiation fees and monthly dues of the members have to be applied to that purpose--to pay the said cost and expenses.

5. That it is one of the objects of the club to entertain strangers who may visit the city of Raleigh.

6. That no person other than members, can obtain any liquor, wine or beer or other beverage or refreshments in or from the club.

7. That the defendant, as steward of the club, furnishes spirituous liquors, wine and beer to the members of the club, in quantities less than a quart, for which he receives prices fixed by the house committee.

8. That on the 10th day of July, 1886, the defendant, as such steward, delivered spirituous liquors to a member of the club, being a person to the jurors unknown, and received the price fixed therefor from said member, and that the said delivery and payment were in the club house.

Upon the said facts, if the Court be of opinion that the defendant is guilty, the jury find him guilty; but if the Court be of the opinion that the defendant is not guilty, the jury find him not guilty.

The Court adjudged the defendant not guilty, and the State appealed.

The section under which the indictment is framed, is very positive and peremptory in its terms. It declares when such is the result of the popular vote, favoring prohibition, that “then and in that case it shall not be lawful for the Board of Commissioners to license the sale of spirituous liquors, or for any person to sell any spirituous liquors within such county, town or township” until another and reversing election shall be held, “and if any person shall sell any spirituous liquor within such territory as specified,” such person offending shall be guilty of a misdemeanor.

There can be no question that in a strict legal sense, the transaction described in the verdict is a sale of spirituous liquors. All the elements of an executed contract are present. The corporate body, a legal entity, and the owner of the liquor, through its servant, the defendant, delivers it to the purchaser at his call, and receives a fixed compensation in money therefor. The property in the goods passes and vests in the purchaser, and the money paid is received for and becomes the property of the club. Can there be any doubt that a corporation may make contracts and deal with a corporator, precisely as with a stranger, and valid obligations, capable of enforcement, be thus formed between the parties?

And is not this dealing with the prohibited subject directly within the terms of the statute, and does it not open the door to the mischiefs intended to be suppressed? It is not necessary that the vendor should be authorized to sell to any applicant, as an ordinary retailer. He is not allowed to sell to any one, and the fact that customers must be members of the association, does not relieve him of criminal responsibility under the mandatory statute.

This interpretation of our own enactment, finds support in adjudications upon the force and effect of similar enactments in other States, to which our attention has been called in the carefully prepared argument of counsel representing the State.

In the State v. Mercer, 32 Iowa, 405; decided in 1871, there was an organization known by the name of the “Winterset Social Club,” whose object was to supply its members with intoxicating liquors as a beverage. The defendant had possession of the liquors used--sold tickets to members, and these were received in payment from them of liquors delivered and drank in defendant's house. The Court, BECK, J., delivering the opinion in reference to an error assigned in ruling out the articles of association which were offered in evidence in the Court below, says, “that if they were of the purport as claimed by the defendant's counsel in their argument, we must conclude that they were correctly excluded by the District court. They appear by the statement of counsel, to have been nothing more than the foundations of an organization, the object and intent of which was to evade the law for the suppression of intemperance, a rather clumsy device by which the defendant and the members of the ‘social club’ hoped to defeat that law, and establish a place of resort where they could be supplied with intoxicating liquors for unlawful use. * * * If...