State v. Comings

[511] The opinion of the court was delivered by Redeield, Ch. J. The conviction, in this case, being of a resident in another state, where there was no apparent intention of transacting business within this state, in violation of the statute, one would rather desire to excuse the act, if it can be done, consistently with the rules of law applicable to the subject. But, it seems to us, the respondent must be regarded as accessory to the furnishing of this liquor to the vendee in this state. The guilt or innocence of the respondent cannnot be determined by his intention. If he do an act which is prohibited by the law, he is liable to conviction, notwithstanding he might have verily believed he was keeping altogether within the requirements of the law. There can be no doubt whatever, that one, who is a dealer in spirits, might give such article to a sick person under circumstances which morally, aside of the statute, were as innocent as possible, or even as commendable as the office of the good Samaritan, and still it be an offence under the statute. It is impossible to except such cases and not give opportunity for evasions which might altogether destroy the beneficial operation of the statute. In the present case, the spirit, certainly, was delivered in this state, through the instrumentality of others, but by the respondent’s procurement. He is then liable to the same extent he would have been if he had himself made the delivery in this state, all accessories being principals, in misdemeanor. If we regard the contract of sale as virtually made in New Hampshire, as we must, perhaps, the delivery was as certainly in this state. For, until the separation of what 'Williams took, hé could not be said to be the owner of any portion of the mass, inasmuch as he was to take what he chose, and, if he did not take any, there was no sale of any. It is not like some of the cases referred to, where the vendee agrees for a specific quantity, not separated from the mass, and pays the price, and agrees to the immediate vesting of the title, before the measurement. For here, no quantity was agreed upon, or any price paid, or anything else done, to indicate the purpose of the parties to have the title pass until the separation. It was, then, clearly putting the spirits in the power of Williams, in this state. The sale was really consummated in this state, and [512] so, for all the purposes of the prohibition, might very well be treated as made here. If they had asimilar law in New Hampshire, it could scarcely be claimed that what was done there, constituted the offence there. And one sale could scarcely be so evenly divided, one would think, as to constitue no offence in either state. It is the delivery which seems the more essential act in the offence. The sale, without the delivery, would be no offence, i. e., no sufficient ground of conviction. It would be so far illegal as to render the contract void, as was held in Territt v. Bartlett, 21 Vt. 184. But that does not show always enough to convict of the offence, as was said at the bar, in regard to aiding in smuggling brandy in ankers; Briggs v, Lawrence, 3 T. R. 454; see also Holman v. Johnson, Cowper 341. The delivery, without a sale, is an offence; so that whether this is called a sale or not, in this state, the offence is complete. It clearly is, if not a sale here, a furnishing of spirits by one who is a dealer, and who does it for gain and emolument. We think, therefore, the conviction was proper. Exceptions overruled, and respondent to pay fine of $10, and costs.