State v. Smith

• Decision Date: 19 February 1907
• Citation: 56 S.E. 528,61 W.Va. 329
• Parties: STATE v. SMITH.
• Court: West Virginia Supreme Court

56 S.E. 528

61 W.Va. 329

STATE v. SMITH.

Supreme Court of Appeals of West Virginia.

February 19, 1907

Submitted January 15, 1907

Syllabus by the Court.

Under an indictment for selling spirituous liquors, the state resting her case on evidence that defendant, as a railroad agent, delivered a box of liquors transported from Cincinnati consigned C. O. D. to a person who had not ordered the liquors, in violation of chapter 40, § 1, p. 130, Acts 1903 [Code 1906,§ 954], the defendant has a right to introduce evidence for the purpose of showing that he made inquiry to learn whether the consignee had ordered the liquors to be sent him for his personal use, and acted bona fide in making such delivery.

Question. Is that clause of page 130, c. 40, § 1, Acts 1903 [Code 1906 § 954], prohibiting railroad agents from delivering liquors to consignees not ordering the same, contrary to the commerce clause of the federal Constitution?

Error from Circuit Court, Barbour County.

Charles Smith was convicted of an illegal sale of liquor, and brings error. Reversed and remanded.

Poffenbarger J., dissenting in part.

Wm. T George and Fred O. Blue, for plaintiff in error.

C. W. May, Atty. Gen., for the State.

BRANNON J.

Charles Smith was indicted and fined in Barbour county; the indictment charging that he did unlawfully sell spirituous liquors without license. The state's evidence in support of the prosecution was that Smith, as agent of the Baltimore & Ohio Railroad Company, delivered to Arthur M. Blake boxes marked "Glass" proven to contain whisky, shipped by a liquor dealer in Cincinnati, consigned C. O. D. to Blake, and received payment from Blake for the articles; and that Blake had not ordered the liquor to be sent to him. The statute on which the state would ask conviction is chapter 40, § 1, p. 130, Acts 1903 [[[Code 1906, § 954], reading as follows: "That any agent or employé of any person, firm, or corporation, carrying on the business of a common carrier, or any other person, who, without a state license for dealing in intoxicating liquors, shall engage in the traffic or sale of such liquors, or be interested for profit in the sale thereof, or act as the agent or employé or consignor or consignee of the same, or who shall solicit or receive any order for the sale of any intoxicating liquors, or deliver to any person, firm, or corporation, any package containing such intoxicating liquors, shipped 'collect on delivery' or otherwise, except to a person having a state license to sell the same, or to the bona fide consignee thereof who has in good faith ordered the same for his personal use, shall be deemed to have made a sale thereof contrary to law, and guilty of a misdemeanor." On the trial, in connection with his own evidence that he believed that Blake had ordered the goods from Cincinnati, and had no reason to believe to the contrary, the defendant, as well as the state, proved that when Blake called for the liquor, after being informed by letter from Cincinnati that the consigned article was at the railroad office, before Smith would deliver him the article he required Blake to sign, and he did sign, a receipt reading as follows:

"United States Express Company.

Nov. 1, 1905.

This is to certify that the entire shipment of 1 Box Glass shipped by M. E. Stone, from Cinti. 10th day of Nov., 1905, is for my own personal use and is ordered by me and is not to be sold by me.

[Signed] A. Blake.

Witness: W. B. Robinson."

The court refused to admit the receipt in evidence.

Was the receipt admissible? This depends on the question whether inquiry by the jury was proper as to Smith's knowledge or ignorance of the fact that the liquor had not been ordered by Blake to be sent to him from Cincinnati. The statute does not in words require that for conviction the act of delivery shall be with knowledge that the consignee had not ordered the liquor. It may be said simply to prohibit the act. We find in 12 Cyc. 148, the following: "As a general rule where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law, and the existence of a criminal intent is essential. The Legislature, however, may forbid the doing of an act, and make its commission criminal without regard to the intent of the doer, and if such an intention appears, the courts must give it effect, although the intention may have been innocent. Whether or not in a given case a statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the Legislature." It will there appear that the authorities are many each way. I think the principles stated in Bishop's Statutory Crimes, § 1022, are pertinent. "Under these statutes the question of the effect of a mistake of fact, discussed or adverted to in several other connections, has often arisen. It is not proposed to repeat the former discussions. They are referred to in a note, and the reader is re quested to examine them. The result, derivable both from the places referred to, and from the decisions under the present head, is that one whom the law permits to sell intoxicating liquor, and whose purpose and endeavor it is to conform to the law in all things, and to do no wrong of any sort, is legally, the same as he is morally, justified in acting, like other people in respect of other things, on what upon careful investigation and inquiry appear to be the facts; so that, if believing the appearances he does what would be legally and morally right were the real facts so, he is not punishable though he was deceived, and they were different. Thus, if one authorized to sell liquor to adults and forbidden to sell it to minors is, without his fault or carelessness, led to believe an applicant to be an adult, while truly he is a minor, he is not punishable though he makes the sale; a proposition which some deny. And the same doctrine applies under the statutes permitting sales generally, but not to habitual drunkards. It applies likewise to the question of the intoxicating quality of the liquors sold; but there are cases in denial of this. Where the statute is silent as to the defendant's intent or knowledge, the indictment need not allege or the government's evidence show that he knew the fact. His being misled concerning it is matter for him to set up in defense and prove. Quite different are the law and procedure where the statute has the word "knowingly' or the like; knowledge is then an element in the crime, the indictment must allege it, and the evidence against the defendant affirmatively establish its existence." It is beyond question that our own cases say that where a statute simply prohibits the sale of liquor in certain cases, as to minors, without some word like "knowingly" or other expression, the doing of the act fixes the offense, no matter about the knowledge or ignorance or intent of the accused. It need not be alleged in the indictment that the party knew the purchaser to be a minor, or intoxicated, or in the habit of becoming so. State v. Baer, 37 W.Va. 1, 16 S.E. 368; State v. Farr, 34 W.Va. 84, 11 S.E. 737; State v. Cain, 9 W. Va. 559. Nor can it be relied on in defense. Those cases rest on statutes making the mere act an offense. But I draw a line of difference between those cases and this. The statute we are construing allows the delivery of a liquor consignment by the agent to one "who is a bona fide consignee thereof, who has in good faith ordered the same for his personal use." Thus, the statute introduces into the case the question whether the person is one who has in good faith ordered the liquor for his personal use. It does not so qualify other clauses, evincing design to make a difference as to the act of delivery. This surely allows the agent to make inquiry touching this matter. Can he not take precaution as to this to protect himself; to know whether he ought to deliver the article? Does the statute mean that the agent must infallibly, in every instance, guaranty that the consignee is one who in good faith has ordered the liquor for his personal use? Does it mean that when the agent has taken care to make such reasonable investigation as to that as a prudent person would adopt, but it turns out that the consignee did not order the liquor, the agent is nevertheless guilty? I think not. I think that he can show in his defense that he instituted prudent investigation to learn the truth. Therefore, we conclude that the receipt, a part of the res gestae, containing Blake's direct statement that he had ordered the box for his own personal use, should have gone to the jury, as tending to show that Smith acted in good faith and believed that Blake was a bona fide consignee, to enable the jury to say whether, under all the circumstances, Smith acted honestly and in good faith. If such agent delivers a box or package containing liquor, but not disclosing the character of its contents, does the statute mean that he is guilty, though he may not have known the contents? Must the agent investigate every box? How? He cannot break the box. If he makes fair investigation, and has reasonable ground to believe the box does not contain liquor, is he nevertheless guilty? Is that the real meaning of the statute? This doctrine may, in many cases, defeat the design of the statute; still, we must not give the act a construction to promote injustice, and inflict punishment on the innocent agent.

The question of the validity of this act under the interstate commerce clause of the Constitution of the Union is raised. The act does not forbid the consignment of liquor to licensed dealers, or to consignees under real purchase. It does not forbid...