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21 Del. 334

State v. McNett

New York Court of General Session of the Peace

Decided May 4, 1905

New York Court of General Session of the Peace · decided 1905-05-04

<p>Indictment for Selling Liquor Without a License.</p> <p>Statement of Facts.</p> <p>It is hereby agreed by and between Robert H. Richards, Attorney-General, who prosecutes for the State of Delaware, plaintiff above named, and Kenney and Magee, Esquires, attorneys for the defendant, that the following is a true statement of the facts relevant to the above stated case, viz.:</p> <p>The said Howard McNett on or about the first day of August, A. D. 1904, sold one quart of brandy (the same being intoxicating liquor) to George D. Cook, at the store of the said Howard McNett, at Blackstone’s Cross Roads, in Kenton Hundred, Kent County, Delaware, which said store was the store of the said Howard McNett individually.</p> <p>On the first day of September, A. D. 1903, Martin B. Burris, State Treasurer, did issue unto Elmer Bowdle and Howard McNett, the defendant, trading as Bowdle and McNett, a certain license in in the following words and figures, to wit:</p> <p>“No. 19.</p> <p>“ In the name and by the authority of the State of Delaware.</p> <p>“ The State of Delaware, ss:</p> <p>“ John Hunn, Governor of the said State.</p> <p>“ To All Persons Whom these Presents May Concern, Greeting:</p> <p>“ This license is granted to Elmer Bowdle and Howard McNett, trading as Bowdle & McNett, of the Hundred of West Dover, in the County of Kent and State of Delaware, to follow the trade, business, pursuit, or occupation of distilling or manufacturing spirituous or alcoholic liquors for sale ; and further authorizes the said Bowdle & McNett to sell his products so manufactured in quantities not less than one quart, not to be drunk on the premises, they the said Bowdle & McNett having paid the sum of forty dollars to the State Treasurer, the fee due the said State therefor, conformably to the provisions of an Act of the General Assembly of the said State, entitled ‘ An Act to encourage the consumption of grain and raise revenue for State purposes,’ passed at Dover, April 21, 1893.</p> <p>“ This License shall continue in force two months from the date hereof, and no longer.</p> <p>“ Given under my hand and countersigned by the Secretary of State, and sealed with the seal of his office, at Dover, the (Seal of first day of September in the year of our Secretary of State.) Lord one thousand nine hundred and three.</p> <p>“ John Hunn.</p> <p>“ Caleb R. Layton,</p> <p> Secretary of State. </p> <p>“ Issued by Martin B. Burris,</p> <p> State Treasurer.” </p> <p>That the “premises” referred to in said license where the liquors therein mentioned are by said license authorized to be distilled or manufactured are located in "West Dover Hundred, Kent County, aforesaid, and about ten miles from the said store of said Howard McNett. That the said brandy so sold, as aforesaid, was manufactured within the term of said license by said Bowdle and McNett at the “ premises ” aforesaid.</p> <p>It is further agreed that if the said license so as aforesaid issued to Bowdle & McNett is sufficient to authorize the said sale of brandy to said George D. Cook then the jury shall be instructed to acquit the defendant, otherwise the jury shall be instructed to find said defendant guilty, under the indictment in the case.</p>

Decided 1905-05-04

Lore, C. J.,

¶1charging the jury :

¶2Gentlemen of the jury :—The case which you are empanelled to try is that of the State vs. Howard McNett, who is indicted for selling liquor without a license. It appears from the statement of facts agreed to by counsel that Mr. McNett took out a manufacturer’s license, which on its face purports to be a license for two months, to manufacture liquor and sell the same in quantities of not less than a quart not to be drunk on the premises.

¶3The defense is founded upon a statute passed in 1893, the first section of which is in this language :

“ Section 1. That every distiller or manufacturer of spirituous or alcoholic liquors for sale shall before beginning such manufacture and each and every year during which he shall operate his distillery or factory procure a license from the said State Treasurer which shall authorize the operation thereof and shall pay to said State Treasurer for the use of the State an annual license fee of two hundred dollars or a monthly license the sum of twenty dollars, and such license shall only be held to authorize the holder thereof to operate his distillery or factory during the time therein expressed and shall authorize such holder to sell his products in quantities not less that one quart which shall not be drunk on the premises.”

¶4The Court in construing that section hold that the license itself, is the authority not only for the manufacture but for the sale, and the right to manufacture and the right to sell depend upon the license and expire with the expiration of the term mentioned in the license; and, further, that the law authorizes the sale by the manufacturer of liquors only on the premises, that is, in the warehouse or on the premises where they are distilled. We do not mean to say that such sale is confined exactly or precisely to the building of the distillery, but it must be bona fide at or in part of the manufacturing plant.

¶5We say to you further that the license authorized such sale only by the parties named in the license. In this case it seems that the liquor was sold at a store ten miles away from the place of manufacture; that it was sold after the license, which was only for *339two months, had expired, and by one of the members of the firm (who had obtained the license as a firm) as an individual in his store.

¶6We have given you these specific instructions on these points because we feel it necessary for the enlightenment of manufacturers of liquor in this State. There seems to have been a misapprehension of the meaning of the law.

¶7Upon the facts as stated, the defendant has violated the law.

¶8We therefore instruct you to return a verdict of guilty.

¶9. Verdict, guilty.

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