#### Commonwealth v. Gast, Crofts & Co., et al.

(Decided May 16, 1911.)

Appeal from Clay Circuit Court.

1. Intoxica'tir^'Liquors — Soliciting Orders For — No Statute Placing Penalty Therefor — There is no statute in this State placing á penalty upon- .persons who solicit orders for intoxicating liquors.

2. 'Same — The. record- showing that the sale- and delivery complained • of were made in Jefferson county and not. in iClay, no. law was vio. lated and the prosecution was properly dismissed.

' JAMES . BREATHITT, Attorney General, T. B. BlDAiKHY, Assistant-Attorney General for appellant.

J. W. WJRIGHT for appellees.

OPINION OF THE COURT BY

JUDGE NUNN

Affirming.

’ • .. The grand jury of Clay County returned the following in'dictmignt against appellees, to-wit: .

> “The grand jury of Clay County, in the name and by the authority of the Commonwealth of Kentucky, accuse Cast, Crofts *"&*Company, a corporation organized bud existing under the laws of Kentucky, and authorized to sue and be sued, contract and be contracted with and under the corporate name of. Cast,. Crofts *&*Co., with its principar office in Jefferson County, Kentucky, and Charley Hpiise’ of the offense of unlawfully selling, bartering, apd .ldáhing to another person, directly and indirectly, a béVérage, liquid mixture and decoction which caused and produced intoxication, committed in the manner and form as follows, viz.:

> *675. “The said Gust, Crofts & Co.;’ a corporation, and Charley House did on the 19th day óf• January, 1910, in the county, circuit and State : aforesaid; and before the .finding of the indictment herein;, .unlawfully sell, barter and loan to Frank Davis directly and indirectly, in the county aforesaid where the salé: of; spirituous, vinous and malt liquors is prohibited in accordance with the local option law, a beverage liquid mixturo áhd decoction which caused and produced intoxication, to-wit: Cider. ■

> “Against the peace and dignity óf ' the Commonwealth of Kentucky. ”

Appellees were placed on trial at the.October term, 1910, of 'the Clay Circuit Court. The jury returned a verdict of guilty, fixing House’s penalty at a $20 fine and the corporation’s at $75. They filed.grounds for a new trial at the same term; the first being that the court failed to properly instruct the jury á'nd etred in refusing to give a peremptory instruction in their behalf; second, because the verdict was not sustained by the evidence and was contrary to law; third, because they nor either of them were guilty of the offense charged in the indictment. The court continued the motion .until the February term, 1911, and then sustained it by, granting a new trial, and in the order granting the, .trial'the court .inserted the following: '

> “And it further appearing tó the court that on retrial of this case the evidence would be the same as on the former trial, and the Commonwealth’s attorney having conceded this to be true, and the court being of the opinion that said evidence does not and would not make out a case of guilt. It is, therefore, ordered and adjudged that the said case and indictment be and same is dismissed, and the defendant is discharged, to all of which plaintiff objects and excepts and prays an appeal to the Court of Appeals, which is granted. ’

We have no means of knowing .what errors, if any, were committed on the trial of appellees, as there is no bill of exceptions filed to show the objections and exceptions made and taken on the trial; nor are the instructions which were given, before us. Wfe ban not determine from the record whether the court committed any errors upon the trial of appellees or not, nor can we say that the court abused it's sound discretion in granting them a new trial.

*676We are also of the opinion that the lower court did not err in concluding that the evidence introduced upon the former trial, was not sufficient to convict. House was only a traveling salesman who solicited Davis, a merchant, to make and sign an order to his house, the appellant corporation, for a hill of goods, and' the cider was among the goods ordered. The order was for sweet, non-intoxicating cider. House did not sell or deliver him the cider. There is. no statute in this State placing a penalty upon persons who solicit orders for intoxicating liquors. This court has passed upon such questions before. See the cases of Whitmire v. Commonwealth, 140 Ky., 734, and Kahn’s Sons v. Commonwealth, 143 Ky., 297.

Appellee corporation did not make any sale or delivery of an intoxicating beverage, to-wit, cider to Davis in a local option district. The order was sent by Davis from Manchester to their place of business in Jefferson County, and the corporation parted with the property and the possession when it delivered the order to the railroad, a common carrier, in Jefferson County. (McDermott v. Commonwealth, 29 Ky. Law Rep., 750 and 752, and Commonwealth v. Price & Lucas Cider and Vinegar Co., 31 Ky. Law Rep., 1356.)

Therefore, as the sale and delivery were made in Jefferson County and not in Clay, appellees violated no law, and the judgment is affirmed.