Merriweather v. State , 48 Tex. Crim. 80 ( 1905 )

Conviction for violating the local option law. This is a C.O.D. shipment of whisky from Waco to Hillsboro. The order is the same as that in Novich v. State, just decided. This constituted a sale in Waco, and not at the point of destination. Black on Internal Liquor Law, section 434, subject 2, lays down this proposition: "A licensed dealer who receives at his place of business an order for liquor from a place in which he has no license, and fills it by selecting liquor from his stock and delivering it to an express company or other carrier, to be carried to the purchaser, does not violate the license law, although the carrier agrees to collect and return the price; for the sale is made at the place where the goods are separated from the general stock and delivered to the carrier, such delivery being delivery to the consignee." He cites in support of this, Fleming v. Com., 130 Pa. St., 138; Dunn v. State, 82 Ga. 27; Brechwald v. People, 21 Ills. App., 213; Pilgreen v. State, 71 Ala. 368; State v. Carl,43 Ark. 353; Smith v. State, 16 S.W. Rep., 2; State v. Hughes,22 W. Va. 743. He lays down the further proposition in subject 4 of the same section: "If the order for liquor is given by a person in A to an agent or a dealer who has a license to sell liquor in B, and received by the agent subject to his principal's approval, and the liquor is put up by the seller, directed to the buyer at A, and delivered to a carrier at B, the sale is regarded as made at B, and is not unlawful." Citing Frank v. Hoey,128 Mass. 263; Gross v. Scarr, 71 Iowa 656. Such has been the holding in this State in an unbroken line of decisions, and such is the holding of the supreme court of the United States. Sedgewick v. State, decided at the present term. The judgment is reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.