Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1883-04-04
The John O'Nell Case.

The decision of this case by the Rutland
county court is Of so much Importance, in
volvipg as IL does amuch controverted point
in the administration of the liquor laws Of
Vermont, that we give the charge Of Judge
Veazey entire. The jury found O'Neil
guilty and he has appealed TO the supreme
court.
JUDGE vEAzEY's CHARGE
Gentlemen of the Jury This Is a complaint |
against the respondent charging him with own |
Ing keeping and possessing intoxicating liquor |
with the intent TO sell, furnish or give II away |
contrary to law. The answer II simply denial |
The states evidence tends show that this Mr. |
Hopkins sent a letter OF letters at different times
to this respondent, Mr.. ONeil, Mt Whitehall, re-
questing him n forward to him certain kind OF
liquor testified to; that In response TO those let
tiers the respondent forwarded the liquor by an
express company with the instruction that II |
should be delivered to Mr.. Hopkins upon pay
ment by him Of the bill accompanying the liquor,
or In other wo de-, II was sent G o D.-tbe mean
ing Of which has been explained to you. This In
substance Il the case as shown by the evidence
on the part OF the state and II Is claimed upon
this that the respondent owned, possessed and
kept liquor here in this county, in this town and
In this way, for sale contrary to law This evil
dence the part Of the state Is not contradcted
II you satisfied under the rule OF violence to
| ing l1uor here to Rutland TO be delivered only
| upon payment Of the price OF IT, and had II here
for that purpose, ~ the states evidence tends TO
show, then he is guilty OF the charge made In this
complaint
The case does not depend upon the right Of
Hopkins to buy the liquor Anybody has the
| right TO buy liquor right here In Vermont; but
no one not authorized has right to sell II, or
keep 1t for sale We are not dealing with the
buyers right nor the moral right to sell we are
| simply dealing with a case under the law as the
Legislature OF this state has given to us; our ap
proval or dsapproval Of the law has nothing to do
with your duty In this case. The simple question
| IL, does this evidence satisfy you that this re-
| spondent IL guilty OF a violation OF this liquor
law as 1t h rallied, the only ground upon which
| II Is claimed the respondent Is not liable, u he
| sent this liquor here to he delivered 10 Hopkins
| Is, that 1t was sale In New York-a complete
| sale there-and the title passed to Hopkins when
| the respondent delivered the liquor TO the ex-
press company at Whitehall that the fact that
| he sent 1t marked c. o. (Which means to col
| lect on delivery-does not change the character
NJ the transactions that the sale was Just as COM
| plete in New York az though the liquor had teen
| sent without any such directions TO the express
| company or rs though the money had been sent
| with the order, or an absolute credit had been
given II this Is the correct view then our aw !.
| not violated. The transaction in New fUIk, II 1t
| was q complete sale, was n lawful one. But we
do not think this is the correct view, and we hold
| and instruct you that when the respondent sent
| the liquor with instructions to the express com
| pany to deliver 1t TO the person to whom 1t was
| addressed, only on being paid for-or In other
words not to deliver it unless paid for on delivery
| the title remained in O'Neil. 1t remained his
| property until delivered to Hopkins. As soon
L passed the line into the state 1t was O'Neirs
liquor in this state. BY sending 1t in response to
| Hopkins letter. with the instructions indicated
by C. o. d. rs testified to by Mr.. Barker the ex-
press agent O'Nei but filled the order condition
ally and the effect OF this condition was to keep
the title and control Of the liquor within himself
| II the liquor had been destroyed on the way, It
| would have been his loss, rs between him and
| Hopkins. lie III der this condition was never
obliged to deliver the liquor to Hopkins, but after
It got here he could have countermanded the de-
livery to him and caused II to be delivered to any
| other person or to be returned to himself. II In
| response to Hopkins letter ONeil had taken the
| Jug In his hand and come here with 1t, with a
| view of delivering II to Hopkins upon payment,
| probably no one would say but that at any time
previous to the delivery 1t was his liquor; and II
II was his intent to deliver 1t here, then he was
| owning and Keeping it here with that intent II
| instead Of coming himself with it, he had sent
clerk in his store with it, It would have been just
as much his liquor as though he had brought it In
person. 1t would have been his act by his agent
| Instead OF sending it by his own clerk, he makes
| the express company his agent to bring 1t, with
| precisely the same instructions.
| can see no difference legal distinction In
these agents. The express company is Just as
| much bis agent In this tr4nsaction, to hold the
| liquor until payment, as his own clerk would be
When there is condition in the sale, where pay
| ment is made or credit given without condition
| or reservation, delivery to the common carrier
| IL full delivery; and In case of loss on the way
the seller has not got to trouble himself about It,
| but may collect pay of the buyer and the buyer
| must look to the common carrier for the loss,
| But where this condition is attached, on delivery
to the carrier 1t is not a delivery to the buyer,
| and the sale is not complete. Delivery Is an es-
sential feature in sale, to make II complete. 1t
| il undoubtedly true that the seller upon receiving
| an order for goods may ms asure out and forward
/ a nd n
| son ordering it, or upon delivery In TACT to the
| common carrier, may proceed to collect the pay
| of such person but that d. es not touch or reach
the point In this case. The point in this case IL
| that the respondent upon receiving letter. re-
| questing him to send gallon OF liquor, without
further negotiations puts up the liquor In vessel
| furnished by himself and puts that in the hands
| OF a carrier with instructions not TO deliver 1t
| until paid for In response to the letter the
spondent docs not fit to sell the liquor abso-
lutely he don't give Hopkins credit; he takes
one step towards sale; he puts up the liquor and
forwards 1t, but attaches to the jug sort OF legal
| cord, by which he can pull it back at any mo-
ment until the other party gets it. So long as he
| holds TO that cord, he has not let that liquor
go beyond his control; he has not made what In
| law IL q completed sae the title has not passed,
| and the liquor still belongs to the respondent.
| This IL the legal view Of the effect Of sending
goods marked c. o. D., and think this is the
business view. think 1t has never occurred to
| any business man that when he was sending
| away a package OF goods marked in that way
| that he had passed them beyond his control and
| beyond his power to make such order In reference
| 10 those goods as he saw fit before they were de-
liyered. These are our views now, and II we are
| wrong, the supreme court will correct us, there
| foie we have the comfort Of feeling that any mis-
| take we make cannot operate permanent harm to
| the respondent, But upon the question OF fact,
vour finding is conclusive. There is no appeal
| from that; therefore, you should be careful and
decide the facts right that is you should be care
| ful and return true verdict. Are the facts made
out Did this respondent send this liquor here
and own, keep and possess 1t here with intent to
sell furni-h or give IL away contrary to law If
| so he il guilty.
As has teen stated In argument the jury In
state causes are judges Of the law as well as the
| facts Notwithstanding this, 1t Is our duty to
| state the law in criminal causes just as much IS
In civil causes. II you fit to override the court
as to the law there il no remedy; there Is no
| more appeal from your decision on the law than
| on the facts As have stated the respondent
has a remedy against any mistake OF ours as
10 the law; but no exception can be taken to Your
decision OF the law II you see fit to disregard the
instructions OF the court. OF course do not an
cipate you will do any different in this case from
| what juiies ordinarily do-that H. take the law
| as laid down by the court, and then II any error
| IL made the respondent has an ample remedy. |
should not have alluded to this at all II 1t had not
been alluded to in arguments in the manner that
| 1t was
The rest of the charge was in reference TO