State v. McNeeley, 60 N.C. 234, 1 Win. 234 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 234, 1 Win. 234

THE STATE vs JAMES C. McNEELEY

Out- wn.: hag f-i-.-s- iu retail i-pi.'its-'mi'y lawiimi <■ ,j )< , «, "goit < to ci nducMh.U li!wi¡je,:s for him, asUiou»!’ he !'!tws ihe -,•< unty tor ¡In imiifiJtf tisnu, i«- it> t.l-is map; C; the military' «¡nice <J it « Coofiji rata Strife ¡'of tiííi^ jCif ir the Wi.r.

It semis Sit; car. i.=t hi;. i<<t?p.

Tío c-.r- o( ?*••» State vs. Gabault, 3 Joiu-a, JT8, referred w

This was an indictrhent tried at Fall Term of Burke’Superior Court, 18f>3, before Howard, Judge.

■The defendant was indicted for selling spirituous liquors by the small measure without license. (See Iiev. Code, eh, 34, s. 94, and eh. 19, s. (1.) He admitted ictailing in November, 1862, and produced, in justification of his doing so, a Pcense to retail from the Sheriff of Buike-io one \V. C. Good from February, 18G2, to February, 8(13, ami a japer writing from Good to himself in words and figures as follows, viz. : Know all men by these presents tl at 1, AV..C. Good have employe d J, C. Me Nee ley to act for me in my absence and to'manage my grocery store and to retad epir-ituous liquors for me in the town of Morgan ton, and if he prefers doing so he may have the one-half of the profits instead of the salary I have promised him. Given urcler my hand and seal this Octohev 1st, 18(12.

W. C.\ GOOD, u. S.

It was proved that at the date of this instrument Cood was taken into the army as a conscript, where lie had remained all the tune since, and that the instrument was executed for the purpose of continuing his business in Morgan ton.

The Court charged the jury that the business of retailing must be under the control and supervision of the person-licensed, and that be Lad no right to delegate another to retail in bis stead during such an absence as that of a soldier enlisted for three years or the war. The defendant excepted to the instruction.. Verdict of guilty and judgment.

Winston, Sr., for the State.

No counsel for defen da t in this Court.

Batbm? J.

.The decision of this case depends upon the question whether the defendant, w! en he committed the act of retailing, was the assignee of \V. 0. Good, or was merely his agent or manager. If he were the assignee, wo expressed the opinion arguendo in State vs. Gerhardt, 3 Jones, 178, that he could not sell spirituous liquors by.the' small measure under the license of his assignor, because Ins moral qualifications had not been examined into and approved by the 0 »unty Court, as required by law. We can ' see no reason why a licensed ret tiler may not have a cleilc or agent to assist him, in his business, he himself lóinain-ing liable for the acts and contracts of such clerk or agent done or made within the scope of his employment. It is a matter of public.' notoriety that much of the trading with slaves is clone in grocery and other stores, and the Rev. Code, ch. 34, see. DO, evidently contemplates that the owners ofsueh stores may have, agents or managers, because it makes certain provisions in relation to them .as such. The keepers of groceries are frequently licensed retailers also, and we have never understood that they cannot have clerks, agents or managers in the latter as well as in their other business. \V. 0. Good had applied for and obtained a license to retail spirits in the town of Morgan ton for one year. He had paid the State for a valuable privilege, which he was clearly entitled to enjoy for the specified time, unless he should forfeit it by a misuser. Before the expiration of his time, he was eonsiripted anl carried off into the military service of his country. He cOuld po longer enjoy bis privilege in person, and he could not assign it. Why could he not employ another person to manage the business for him ? He would still remaiti responsible for the good conduct of his agent; and that it seems to- us, mates a- difference between such a case and that of an as-signee.

The instrument offered in evidence by the defendant showed clearly that he was acting only as agent and not as assignee. If indeed the transaction between the parties was really intended as a sale of the privilege, instead of the appointment of an ag- nt, then it was an attempted fraud, and afforded no protection to the defendant. But the case was not presented t > the jury in that view, and the conviction cvnuot, therefore, be sustained on that ground. There •was'error in the charge of the J udge, for which the judgment should be reversed, and a venire de novo awarded.

Let this decís"on bo certilied to the Superior Court of law •f Burke County, that it may proceed according to law.