State v. Neis
| Decision Date | 21 May 1891 |
| Parties | State v. Neis. |
| Court | North Carolina Supreme Court |
Indictment for retailing spirituous liquors without license, tried before Moore, J., at January term, 1891, of Buncombe criminal court. The jury returned a special verdict, the nineteenth paragraph of which is as follows: "That on April 28 1890, the defendant, at the club house of the Cosmopolitan Club, in the city of Asheville, furnished and dealt out to the said W. E. Williamson a small quantity, to-wit, a drink of spirituous liquor, so held by the defendant as aforesaid the said drink being a quantity less than a quart, and being taken by said defendant from a demijohn in which some other members as aforesaid had an equal quantity of liquor with said Williamson; and at the same time and place received from said Williamson the sum of ten cents, in the legal currency of the United States, which sum was about the value of the quantity of said spirituous liquor so furnished as aforesaid and that said defendant thereupon handed the said sum of money to the said E. J. Holmes, who afterwards expended it for the purchase of other spirituous liquors for the said Williamson, and turned the same over to the custody of the defendant for the replenishment of the stock of liquor of said Williamson." The other facts sufficiently appear in the opinion. Upon the special verdict the court held that the defendant was not guilty, and ordered his discharge. Appeal by the state.
On indictment for retailing spirituous liquors without a license it appeared that defendant, the steward of a club, was given a jug of liquor by the individual members thereof, who owned the liquor in common, and that he gave one of such members a drink from the jug, taking 10 cents in exchange. The amount received was just about the value of the liquor furnished, and with other money so received was used in replenishing the jug. Held, that there was a sale.
J. B. Batchelor, for the State.
F. H. Busbee, for appellee.
The transaction presented by the special verdict, stripped of surplusage, is this: The defendant was steward of the Cosmopolitan Club of Asheville, and was indicted for selling spirituous liquor to its members. In consequence of the decision in the analogous case of State v. Lockyear, 95 N.C. 633, (the state of facts being the same,) he pleaded guilty. The club thereupon distributed a part of the liquors on hand to certain of its members, who placed them in the hands of the defendant to be held by him not for the club, as a club, but for those individual members of the club as tenants in common, the shares of each not being kept separate, but mingled in the same casks, jars, and demijohns. From time to time, as each of those members wished, he obtained drinks from the defendant for himself and friends paying therefor, (in money, or giving tickets afterwards redeemed in money,) as near as may be, the cost price of the drinks so furnished, and with the money the defendant from time to time replenished the stock of liquors. We can see in this transaction no substantial distinction from the facts of Lockyear's Case. There the steward of the club, as a club, received the money for drinks furnished at cost, and with the money replenished the stock of liquors. Here the individuals of the club, treating themselves as unorganized, furnished through defendant to themselves, from a common stock, the drinks at cost, and with the money received therefor replenished the common stock. When in the present case an individual received drinks for himself and friends, he clearly did not receive the identical liquor which belonged to himself, but he received liquor which belonged mostly to others, and in which he had a minute undivided interest. For his money he received in exchange liquor which belonged to several others, as well as to himself, and converted it to his sole and separate use. Before the transaction the money was solely his, and the liquor belonged to several. By virtue of the transaction, and in exchange for the money, the liquor became his sole and separate property. This is surely a sale. It has every element of a sale. It cannot affect the transaction that subsequently the defendant would purchase the same amount of liquor in value for the party paying the money, and mingle it in the common stock. This last act is that of a member of an association keeping up his quota of contribution to the common stock; the other is the purchase by a member of an association from its common agent, and the character and purport of the act are not changed by the subsequent contribution. It could make no difference that here the defendant was the agent of the individual members of the club, acting as an unorganized body, and that in Lockyear's Case the salesman was agent of individuals acting as an organized club If an agent is appointed by several tenants in common to dispose of real or personal property, and he does dispose of any part thereof in exchange for money, it is none the less a sale because the party paying the money and receiving such part to his own use happens to be one of the tenants in common. And it would still be a sale although afterwards the money so received should be invested in the purchase of similar property held by the same tenant in common. The dealing here is simply what is known as "co-operation," which is an arrangement by which a member of an association procures supplies from the association at cost. The object and the effect of co-operation are not to abolish purchases, for the member still buys from the association, but to procure supplies at cost. This transaction...
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