
    CRAFT v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.
    Rehearing Denied June 5, 1912.)
    1. INTOXICATING LIQUORS (§ 236) — LOCAL Option Law — Violation — Evidence — Sufficiency.
    Evidence held to sustain a conviction of following the occupation of selling intoxicating liquors by taking orders therefor in prohibition territory without a license.
    {Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. 1 236.]
    2. Commerce (§ 55) — Interstate Commerce— Intoxicating Liquors.
    The law which prohibits one from pursuing the occupation of selling intoxicating liquors by taking orders therefor in prohibition territory without a license does not violate the federal Constitution, as constituting an interference with interstate commerce.
    [Ed. Note. — -For other cases, see Commerce, Cent. Dig. §§ 72-102; Dec. Dig. § 55.]
    Appeal from Hays County Court; J. B. Wilson, Judge.
    Dick Craft was convicted of violating the local option law, and he appeals.
    Affirmed.
    B. G. Neighbors, of San Marcos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Hays county has adopted and is under the provisions of our laws prohibiting the sale of intoxicating liquors. After making the other necessary allegations in the information, it charged appellant, “on or about the 5th day of August, 1911, did unlawfully engage in, pursue, and follow the occupation and business of selling and offering for sale, by taking orders therefor, intoxicating liquors, without having obtained a license to follow such business and occupation. He was tried and convicted, and his punishment assessed at a fine of $4,000 and imprisonment in the county jail for 90 days.

The evidence of the sheriff and others would show that on or about the date alleged in the information, and for a long period of time prior thereto, appellant three or four times a week would make trips to Hunter in a buggy, and bring back from 15 to 20 quarts of whisky, and deliver it to those who had given him orders therefor. One witness says that he had given defendant orders a number of times; that he usually paid him $1.50 for the whisky, and would pay 10 cents 'extra for bringing it to him. The sheriff further testified that appellant engaged in no other character of work for livelihood, but was engaged wholly in this character of business — hauling whisky from Hunter, a wet precinct, to San Marcos, in dry territory, a distance of eight miles. It was further proven that appellant had no license to follow this occupation or business. It will .be thus seen that the testimony was ample to support the verdict, if the law under which he was prosecuted is a valid law. The same ■ contentions, as to the constitutionality of this act, are made in this case as were made in the case of Edmanson v. State, 142 S. W. 887, in which case the various grounds are fully discussed, and we merely refer to that decision, without again discussing that question at length.

The -contention that the law is violative of the federal Constitution, in that it is an interference with interstate commerce, is held adversely to appellant by the United States Supreme Court in the case of Delamater v. South Dakota, 205 U. S. 96, 27 Sup. Ct. 447, 51 L. Ed. 727, 10 Ann. Cas. 733; that court holding that since the passage of what is known as the Wilson bill the different states may pass laws prohibiting orders for interstate shipments of intoxicating liquors in territory where the sale has been prohibited. The contention of appellant that this becomes a sale in the prohibited territory, and the act is therefore void, is not sound. This court, in an unbroken line of authorities, has held that the actual sale takes place at the point of shipment (where the order is filled), and not where the order is taken. The Legislature, in using the phrase it did, did so with the knowledge of what meaning this court had placed on those words. In every instance where a person had taken an order for liquors, it has been held that the actual sale took place at the point of shipment, and that the person to whom the order was addressed and who shipped the goods was the person making the sale, and not the person who took the order. A long list of authorities is cited in Parker v. State, 48 Tex. Cr. 69, 85 S. W. 1155. See, also, Luster v. State, 86 S. W. 326; Sedgwick v. State, 47 Tex. Cr. 627, 85 S. W. 813; Sims v. State, 86 S. W. 1019; Newbury v. State, 44 S. W. 843; Beard v. State, 55 Tex. Cr. 154, 115 S. W. 592, 131 Am. St. Rep. 806; Weathered v. State, 60 S. W. 876.

The questions here involved are so fully discussed and authorities so numerously cited in the case of Keller v. State, 87 S. W. 669, we do not deem it necessary to discuss them further, but refer to that opinion, wherein it is held that when the Constitution was adopted the word “sale” had a definite and fixed meaning in law, and the Legislature was without authority to change or alter the elements or meaning of that word, or to fix the place of “sale” by law, and that one who takes an order makes but a conditional bar-gáití, and -the salo takes place where the order is filled, and no act of the Legislature otherwise providing would he valid.

The judgment is affirmed.  