Adams Express Co. v. Commonwealth.

to know that the package delivered contained intoxicating liquors, justifying a conviction, though, if the agents were actually deceived and acted in good faith, the company would not be liable.

4. Carriers Conduct of Business-Notice to Agent.-Carriers must obey the law, and their agents must exercise the same kind of judgment in the employer's business as if doing business for themselves, and what would convince them that a certain fact exists is notice to the carrier of the existence thereof, so that agents must act on knowledge, probabilities, information, and judgment and infer facts as men generally do in similar matters when acting for themselves.

5. Intoxicating Liquors-Bringing Liquors into Local Option Territory-Offenses-Instructions.-An instruction on the trial of an express company for bringing liquor into local option territory, in violation of Acts 1906, p. 320, c. 63, that if the jury believed that the company's agents receiving and bringing the box of liquor into the territory and in delivering the same to a person there acted in good faith, believing the box contained something other than whisky, they should find the company not guilty, was more favorable to the company than it was entitled to for, in addition to the good faith, the agents must act with ordinary caution.

6. Same Inspection of Goods.-Where a carrier has reasonable suspicion that a shipper is attempting to use its vehicle to violate the law, it ought to require enough evidence of the legality of the shipment to satisfy a reasonably prudent mind that the suspicion is not well founded, though, in the absence of statutory right of inspection, a carrier is not bound to have more knowledge than he has notice of.

7. Same.-Acts 1906, p. 320, c. 63, prohibiting any person from delivering liquor into local option territory, is not enacted for the benefit of commerce, but aims to protect people from the vices of an article of commerce deemed an evil, and the legislation is anti-commercial, and, where a carrier knows that an article is contraband, it must be rejected no matter what the shipper may say to the contrary.

JOHN W. LEWIS attorney for appellant.

LAWRENCE MAXWELL, JR., of counsel.


1. An idictment for an offense created by statute must describe

Adams Express Co. v. Commonwealth.

the offense in the words of the statute or in words of similar import. And if the statute creating the offense contains exceptions and provisos in its enacting clause it is necessary to negative such exceptions or provisos in the indictment so as to show the defendant does not come within any of them. (Connor v. Commonwealth 13 Bush 714 and authorities therein cited; Daviess Gravel Road Company v. Commonwealth, 14 Ky. Law Rep., 812; Knoxville Nursery Co. v. Commonwealth, 21 Ky. Law Rep., 1483; Acts of March 21, 1906, 321.)

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2. Error of the court in excluding material and competent evidence offered by appellant proving good faith.

3. Effect of fraud and deception practiced on appellants agent to exonerate it in law. (Bishop on Statutory Crimes, sec. 132; L. & N. R. R. Co. v. Commonwealth, 31 Ky. Law Rep., 687.)

4. Appellant's agents could not lawfully open the package in order to ascertain its contents. (Gowdy, &c., v. Lyon, &c., 9 Ben Monroe, 113, and authorities there cited; Keith v. Amende, 1 Bush, 459; State v. Swett, 87 Me., 113; 32 Atl., 806; Couch v. London & Northwestern Railway Co., 14 C. B., 255-291, et seq; Nitro-glycerin case U. S., 15 Wallace, 539.)

5. The indictment not stating a public offense within the jurisdiction of the court a peremptory instruction to find the defendant not guilty suould have been given. (Same authorities supporting subject 1, Criminal Code of Ky., secs. 276 and 278.)

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for Commonwealth.

The Commonwealth contends as follows:

1. That the indictment is good and is a substantial compliance with the statute.

2. That the court did not err in refusing to allow appellant to prove certain statements offered.

3. That the court properly instructed the jury.

4. That appellant had a fair trial.

This court has held by an unbroken line of decisions that it will not reverse a case upon the ground that the lower court refused to give a peremptory instruction to the jury to find for the defendant where there is any evidence conducing to show his guilt. (Black on Intoxicating Liquors, secs. 444-446.)

Adams Express Co. v. Commonwealth.


Appellant, a common carrier, was indicted and convicted, charged with the statutory offense of bringing and delivering spirituous liquors into local option territory to another than a licensed physician or druggist. The indictment was drawn under Acts 1906, p. 320, c. 63, which makes it unlawful for "any person or persons, individual or corporation, public or private carrier to bring into, transfer to other person or persons, corporations, carrier or agent, deliver or distribute, in any county, district, precinct, town or city, where the sale of intoxicating liquors has been prohibited or may be prohibited, whether by special act of the General Assembly, or by vote of the people under the local option law. * Provided individuals may bring into such district, upon their person or as their personal baggage, and for their private use, such liquors in quantity not to exceed one gallon: and provided, the provisions of this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods, in unbroken packages, in quantity not to exceed five gallons at any one time."


Appellant argues that the indictment is bad on demurrer because it does not negative all the provisos of the act. It did charge that the person to whom the liquor was delivered was not a licensed physician or druggist; but it did not say that the liquor was not brought into the local option territory by the defendant upon its person, or as its personal baggage, for its own use and in a quantity not more than one gallon. Nor was it necessary to have so pleaded in terms. The

Adams Express Co. v. Commonwealth.

indictment alleges that the accused was a common carrier, an incorporated or joint-stock company. Such a person, being purely artificial, was not intended to be embraced in the exception just alluded to, but that exception was designed for the benefit of natural persons only. An artificial person cannot have personal baggage any more than it could drink the liquor. So that, while the general rule may be that, in drafting an indictment under a statute whose enacting clause contains exceptions, the indictment must negative such exceptions, it is not necessary to do so in the terms of the statute, provided the whole indictment does so in language that leaves no doubt that the accused does not belong to the excepted class. This indictment is good under that rule of pleading. The liquor in this case was a box containing bottles of whisky shipped from a point in Nelson county, Ky., to Springfield, Ky., and wholly within this State. Springfield is a local option town. The box did not have any marks upon it to indicate its contents, nor did the waybill accompanying it show what the box contained. The shipper and the consignee each declared that the box contained paint. The shipper was a distiller's clerk. The consignee a painter. Both were known, respectively, to the agents of appellant receiving and delivering the box. At the receiving point there was only a distillery—a flag station on the Louisville & Nashville Railroad. The express company's agent on the train who received the box suspected its contents. He inquired of the distiller's agent, whom he knew, what the box contained. The receiving agent also suspected the contents of the box. He asked the consignee what it contained. Each of them testified that they believed the statements that it contained paint. The box was not marked,

Adams Express Co. v. Commonwealth.

probably to conceal the nature of its contents. The waybill made out by the express train agent may or may not have failed to show what the box was represented to contain for the same reasons. The shipper's clerk falsely stated the box's contents for the same reason, and the consignee, for like reason, misrepresented the fact, though he says in his testimony that he said to the agent jokingly: "It might be paint." Now, if all these facts had actually deceived both of appellant's agents and they had acted in good faith and with due caution, the carrier would not be liable; for, although the statute contains no such qualification, it is rare when the law makes one ignorant of the fact and innocent of intent a malefactor. & N. R. R. Company v. Commonwealth, 126 Ky., 279, 103 S. W. 349, 31 Ky. Law Rep. 687. So the question for the jury was: Did the agents or either of them know, or have reason to know, of the real contents of the package, and were they, in spite of such notice as they may have had, actually deceived, although acting in good faith and with proper caution in the matter.


Common carriers ought to obey the law just like other people, not in merely keeping its letter while breaking its spirit, but keeping both letter and spirit under such circumstances as other people are expected to do. An agent of a common carrier is required to exercise the same kind of judgment, and to have as much sense in doing his employer's business, as if he were doing the business for himself; and what would convince him, or ought to, that a certain fact exists, is notice to his master of its existence. He must act on knowledge, probabilities, information, experience, use of judgment, infer facts from other established facts, as men generally do in similar matters when thinking or acting for themselves. In this

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