I cannot concur in the opinion of the majority. Section 794, Cr. Code of 1912, makes a sweeping prohibition, and says:
"It shall be unlawful for any person, firm, corporation or association within this State to * * * deliver * * * any spirituous, malt, vinous, fermented, brewed or other liquors and beverages, or any compound or mixture thereof, which contain alcohol and is used as a beverage and which if drunk to excess will produce intoxication, except as hereinafter provided."
The statutes, then, proceed to allow certain State officials to sell and deliver under certain regulations. These State officers cannot sell to minors. Section 853. The prohibition of section 794 includes every one. It includes minors. Unless a defendant is a duly authorized State officer, he can deliver to no one, and section 853 prohibits the State officer to deliver to a minor. The prohibition to deliver to a minor is thus made absolute, and there can be no delivery, under the State law, to a minor. This is interstate commerce, and in interstate commerce the Federal statute is controlling.
The plaintiff must, therefore, make out his case under the Federal statute or be nonsuited. The Federal statute prohibits the delivery to a "fictitious person" of any spirituous *Page 79 liquor, under a penalty of $5,000. Fictitious means not only imaginary, but unreal and untrue. Was the plaintiff the real consignee? Elijah Jefferson, the father of the plaintiff, who the plaintiff tried to make his agent and did make his witness, said:
"I was convicted of selling whiskey six or seven years ago and served my time. I guess my daughter (the consignor) knew this. I guess she knew I had trouble with the officers. I guess she knew I would have trouble if she shipped the whiskey in my name."
It seems to me that, with a case in that condition, the defendant was entitled to some statement that the plaintiff was the real and not the fictitious consignee, before it incurred a penalty of $5,000. It is true, that this was not the reason assigned when the defendant refused to deliver; but, if the unlawfulness of the delivery appeared before judgment, then a Court should not require a defendant to do an unlawful thing, because the defendant did not know the facts at the inception of the case.
Besides this, the plaintiff is a minor, and there is no evidence that the whiskey, in possession of the defendant, was necessary, according to his condition. It may be that, if A delivers to B $1,000 belonging to C, a minor, with instructions to deliver it to C, A would be estopped; but I do not think C would be estopped to plead minority when he came of age. It may also be true that if B took the money, and agreed to deliver it to C, knowing C to be a minor at the time of the contract, a Court might require B to carry out his contract; but that is not this case.
There is no evidence that the defendant, at the time of receiving the shipment, knew that the consignee was a minor. This is not an action for the property of the plaintiff. It is an action for a malicious failure to deliver the plaintiff's property. *Page 80
I think the plaintiff's testimony shows abundant reason for defendant's failure to deliver, and that the nonsuit should be sustained.