
    Tinker v. The State.
    
      Indictment for Selling Lignor without License.
    
    1. Sale of imported liquors, in original packages. — Where bottles containing quarts, pints, or half pints of spirituous liquors, each wrapped in a separate paper and labeled with the kind, and quantity of liquor contained therein and the name of the shipper, were delivered to a carrier in Tennessee for transportation into Alabama, and the carrier, without the knowledge or agency of the consignor, put such bottles in boxes provided by itself, and thus transported them into Alabama, the bottles, and not the boxes, are “original packages.”
    
      2. Same; burden of proof. — Where, on a trial of defendant for selling liquor without a license, the State established a prima facie case by proof of a sale by the defendant within twelve months before the finding of the indictment, and within the county, the burden was then cast on the defendant to show that the liquor sold by him was such as he had the right to sell.
    S. General charge on evidence. — When there is any conflict in the evidence on a material matter, the general charge should not be given.
    4. Explanation by court of charges given. — Where the jury reported to the court that they could not reconcile two written charges given, it was not error for the court to state to the jury that there was no conflict between the two charges, where such was the fact.
    Appeal from tbe Circuit Court of Jackson.
    Tried before tbe Hon. John B. Tally.
    Tbe evidence in tbis case is sufficiently stated in tbe opinion. In tbe oral charge to tbe jury tbe court instructed tbem as follows: “I apprehend that it would be no' excuse to tbe defendant that tbe railroad company, without authority from or knowledge of Cureton, put tbe bottles, or some of tbem, in boxes, and shipped tbem that way, if tbe defendant sold separately any one of tbe bottles so placed in boxes and. shipped.” Tbe defendant excepted to tbis part of tbe oral charge, and separately excepted to tbe refusal of tbe court to give each of the following written charges requested by him: 1. “If tbe importer shipped tbe bottles as so many separate packages, and tbe transporter or carrier put the bottles in boxes for convenience or otherwise, then, and in that event, tbe bottles as shipped were tbe original packages, and not tbe boxes with tbe bottles in tbem.” 2. “If the jury believe from tbe evidence that tbe bottles were shipped by tbe importer as so many separate packages, tbe fact, if it be a fact, that tbe carrier put said bottles in boxes would make no difference. Tbe defendant, as tbe agent of tbe importer, would have tbe right to sell tbe bottles separately, as they were shipped, provided tbe jury believe from tbe evidence that tbe sale proven was in July, 1890.” 3. “If tbe jury believe tbe evidence, they should find tbe defendant not guilty.” At tbe request of tbe solicitor tbe court gave tbe following written charge to tbe jury, to tbe giving of which charge tbe defendant duly excepted: “4. Tbe burden of proof is on tbe defendant to show that tbe particular bottle of whiskey sold to tbe witness was not one of tbe bottles transported in tbe box, if you find from tbe evidence that a bottle of whiskey containing a pint or half pint was sold by tbe defendant to tbe witness within tbis county, within twelve months before tbe finding of tbis indictment, and that some of tbe bottles of liquor were transported in boxes, and others transported loosely on the floor of the car.” At the request of the defendant the court gaye to the jury the following written charge: “5. If the jury believe from the evidence that the whiskey sold by the defendant was whiskey imported from Chattanooga, Tennessee, by G. W. Cureton, the importer, and sold by the defendant, as agent for the said Cureton, in the condition that it was shij>ped from Chattanooga, Tennessee — that is, if the bottles, among which the one sold was shipped from Chattanooga, Tennessee, were shipped separately as so many separate packages, and the one sold was sold by the defendant in the same way some time in July, 1890, then they should And the defendant not guilty.” The bill of exceptions recites: 'After the jury had gone out to consider their verdict, and remained out all night, they returned into court next morning, and reported to the court that they could not agree upon a verdict. Whereupon, the court asked them what was the trouble, and they said, ‘Here is one charge that we can convict the defendant irnder’ — exhibiting to the court charge No. 4 — ‘and here is a charge we can acquit the defendant under’ — exhibiting to the court charge No. 5. Thereupon the court told the jury ‘that there was no conflict in the two written charges given them.’ To this remark of the court to the jury the defendant then and there duly excepted.”
    ¥i. L. MaetiN, Atorney-General, for the State.
   THOBJNGTON, J.-

Appellant was indicted in February, 1891, and convicted, for selling liquor without a license. The testimony for the State showed the sale by defendant of a half pint of whisky in said county, and within twelve months before the finding of the indictment; that such sale occurred in July or early in August, 1890, but whether before or after the 8th day of August, 1890, did not clearly appear.

The defendant’s testimony tended to show that he was the agent at Bridgeport, Ala., for one Cureton, who carried on business at Chattanooga, Tennessee ; that the latter on the 5th day of August, 1890, delivered to the railway company certain separate bottles containing quarts, pints and half pints of spirituous liquors, each bottle being enclosed in a paper bag, and tied with a string about the cork, the bags being- labeled with the kind and quantity of liquor and Cureton’s name, and all to be shipped to him at Bridgeport, Ala. The bottles were hauled to the depot by being placed loosely, or separately, on drays, and tlie railroad agent at first refused to receive tliem unless tlie consignors would bave them boxed; but on being informed by Cure-ton tbat be intended to sell tbe liquor in bottles in Alabama, and tbat if they should be shipped in boxes be could only sell them there by tbe box, tbe agent consented to receive and did receive tbe bottles separately, and gave bills of lading therefor in tbat form, ujion Cureton’s signing a release. Tlie bottles were received by defendant at Bridgeport from tbe railroad company, some being loose, or separate, and some (tbe testimony for tbe State showed) in boxes. The bottles were transported by tbe railway company, partly, in separate packages, tbat is, each bottle placed singly on tlie floor of tbe car, and some in open boxes provided by tbe railway company, set in tbe car but not attached thereto ; and in receiving tbe liquor defendant received tbe boxes and contents, and hauled them with tlie separate bottles from tbe depot to bis store in Bridgeport. Tbe boxes, so far- as appears to tbe contrary, were used by tbe railway company without Cureton’s knowledge, and tbe joroof failed to show whether tbe particular bottle of liquor shown to bave been sold was sold from one of tbe boxes, or whether it was one of tbe loose or separate bottles. Defendant’s testimony showed tbat tbe sale was made prior to August 8, 1890, and tbat tbe bottle sold was in the same condition as when received from tbe railway company.

Tbe questions arising upon this record have been substantially decided by former decisions of this court and tbe decisions of tbe Supreme Court of tbe United States.— Keith v. The State, 91 Ala. 2 ; Harrison v. The State, Ib. 62; Tinker v. The State, 90 Ala. 638; Leisy v. Hardin, 135 U. S. 100. Tested by these decisions, tbe Circuit Court erred in tbat part of its oral charge excepted to by defendant, and in its refusal to give tbe first and second charges requested by tbe defendant.

There was no error in the refusal of the court to give tlie general affirmative charge requested by defendant. There was a conflict in tbe testimony as to whether tbe sale Avas made prior or subsequent to the 8th day of August, 1890, tbe date of tbe passage of the Act of Congress “to limit tbe effect of tbe regulations of commerce betAveen tbe several states and with foreign countries in certain casesand there was an inference of fact to be drawn by the jury from tbe testimony in regard to the mode of shipment of the bottle sold by defendant — that is, whether it was so shipped by tlie importer, or by tbe railway company without the former’s knowledge or agency.

The charge given at the request of the solicitor is erroneous, for the reason that it ignores the inquiry whether or not the bottles transported in boxes were so transported by the railway company without the knowledge or agency oi the importer, or whether the bottles were delivered in boxes by the consignor to the carrier. The character of the article shipped as an original package is determined by the condition of the package when' delivered for shipment by the importer to, and received by, the railway company or transporter, and not by the act of the latter, after receipt of the package by it, without the knowledge of the former. The bills of lading, in evidence, show that the bottles were delivered to the railway company by the shipper, and received by the company, in packages consisting of single bottles, and to the same effect was the oral testimony for the defense. The testimony of the State in rebuttal tended to show that some of the bottles, although wrapped separately in paper bags and each labeled, were received by defendant in boxes not fastened to, but loose, in the car, and were removed by defendant in the boxes to the store where he carried on business for the importer. The charge under consideration ignores the question arising from this testimony, whether the bottles received in boxes were so shipped by tlie importer, or placed in boxes by the railway company for its own convenience in handling the same.

Me will add, however, inasmuch as the case is to be reversed, and will doubtless be retried, that the charge properly places the burden of proof on this question. Tlie State on proof by it of a sale of liquor by the defendant within twelve months before the finding of the indictment, and within the county, established a prima facie case against the defendant, and the burden was then cast on him to show that the liquor so sold by him was the original package, and, in this case, that burden could only be met by defendant’s showing that the liquor sold by him was one of the separate bottles, or if it was one from the box, that it was shipped by the importer as a separate or single package, and not in the box, and that the package when sold by him was in its original condition.

The charge numbered five, requested by defendant, conforms to the decisions of this court above cited and should have been given. Its refusal was error.

Defendant’s exception to the remark of the judge to the jury that there was no conflict between charges numbered four and. five was not well taken. The remark simply asserts what is plainly tbe fact, and tbe circumstances made it proper tliat tbe court should so instruct tbe jury.

For tbe errors herein pointed out tbe judgment of tbe Circuit Court is reversed, and tbe cause remanded.

Reversed and remanded.  