Donley v. State , 48 Tex. Crim. 567 ( 1905 )

HENDERSON, Judge.

Appellant was convicted of violating the local option law, and prosecutes this appeal. The only question that need be considered is, was this sale of intoxicating liquor in Camp County? Or was it simply a C. O. D. sale, sold and shipped at Covington, Kentucky? The testimony on this point is, as follows: “Cotter stated that he met appellant in Pittsburg, Camp County; he told me he was taking orders for whisky, and that he would order me some if I wanted it; that it would cost me $3.85 per gallon. I gave him an order for one gallon, he filled out an order on some house in Covington, Kentucky. He told me the whisky could come C. O. D. by express to me. About a week afterwards, witness went to the Katy depot, and found the whisky had come, and paid the agent the C. 0. D. charges, $3.85, and took the whisky. Never paid defendant any money for the whisky; did not know what he got.for taking the order. Defendant took my order in Pittsburg, and the whisky was delivered to me at the Katy depot about October 1, 1904.” The testimony of the express agent is to the effect, that he received the gallon of whisky, shipped from Covington, Kentucky, and consigned to appellant at Pittsburg; it was a C. 0. D. package, and the charges were $3.85. There is some testimony that appellant told one Honeycutt that he was acting for Crigler & Crigler, of Covington, Kentucky, and that they were to pay him 50 cents per gallon on all whisky orders taken by him, which was accepted and taken out of the express office by consignees; that whisky ordered by him and not taken out by consignees was to be shipped back to Crigler & Crigler, at his expense, the same to be deducted from his" commission. That he proposed to witness Honeycutt on one occasion to go in with him to solicit orders. This is in effect all the testimony. There is nothing to take the case out of the ordinary C. O. D. shipment; and that too, an interstate shipment. We have repeatedly held that such sales of liquor were consummated at the place where the liquor was delivered to the carrier to be conveyed to the consignee. Keller v. State, 13 Texas Ct., 264. We have also held the C. O. D. shipment of liquor, where the consignment was made beyond the State and in another State, that the sale.was made in the foreign territory, and was protected as interstate commerce. Sedgwick v. State, 12 Texas Ct. Rep., 455.

The judgment is reversed and the cause remanded.

Reversed and remanded.