State v. Intoxicating Liquors , 106 Me. 142 ( 1909 )

Emery, C. J.

Four gallons of whiskey which came from Boston, Mass., to Lewiston, Maine, consigned to W. N. Bridgham were seized at the station of the Maine Central R. R. Co. (the carrier) in Lewiston, as intended for unlawful sale in this State. The liquors arrived in Lewiston, Jan’y 3, 1907 and were then seized but were returned to the company Feb’y 14. They were again seized Feb’y 18, and held in the custody of the officers until Dec. 10, 1908 when they were again returned to the company. They were again seized upon the process in this case Jan’y 7, 1909. No notice was given Bridgham of the arrival of the liquors, and neither he nor any one for him has ever claimed them. The rail'road company, however, did not know the consignee or the owner,

It appears, therefore, that after arrival the liquors were in the actual custody of the railroad company four days in February 1907, and twenty-eight days in December and January 1908-9, or thirty-two days in all. There was admittedly no actual delivery to the consignee, and under the authority of State v. Intoxicating Liquors, 104 Maine, 463, we must hold there was no constructive delivery. No one for the consignee had called for and receipted for the liquors as in State v. Intoxicating Liquors, the Grand Trunk Railway Company, Claimant, 106 Maine, page 138, and no facts are stated from which can be inferred any agreement or understanding between the consignee and the carrier for the latter to hold the liquors for the consignee. The liquors must therefore be returned unless it appears that they were adulterated or misbranded and hence unlawfully brought into this State in violation of the Act of Congress known as "The Pure Food Act” of 1906.

The burden is of course upon the State to prove such adulteration or misbranding. There is no evidence at all as to how they were branded, or that they were not branded, nor any evidence as to their "strength, quality or purity” except that the liquors were colored and slightly sweetened by burnt sugar. There was no evidence as to the extent of the coloring, or the quantity or percentage of sugar used, or that it was harmful, and no evidence that it increased the residuum above that permitted by the Pure Food Act. The court is not bound to take judicial notice that liquors cannot be colored to some extent by burnt sugar without thus increasing the .residuum. We hold, therefore, that the evidence does not prove the liquors to be within the prohibition of the Pure Food Act; hence they must be returned to the claimant carrier even if they were intended for unlawful sale.

Liquors ordered returned.