concurring: In a special verdict the Court is not at liberty to infer anything not found. State v. Custer, 65 N. C., 339. The facts found are that the defendant sold a gallon of whiskey and received $2 therefor; that he said he would send the order to Danville, Va., and have the whiskey sent out by express, and the purchaser did get the whiskey at the express office next morning. But there is no evidence that he did in fact send the order to Danville, nor that this particular whiskey came by express from Danville addressed to Eastep. The tag on the jug bore Eastep’s name, but nothing to indicate that it had come by express from Danville or elsewhere for him. Neither the express agent nor his books were in evidence, and the defendant availed himself of his privilege of not going on the stand, and neither proved the sending of the order nor the shipment of whiskey in pursuance thereof. The jury did not find that these things were done, and the Judge could not draw that' inference. If authorized to draw any inference, he might possibly have inferred that the whiskey was already in the express office, or elsewhere in Lexington, and that the gallon jug was merely tagged with defendant’s name ready for Eastep next morning. We do not know how this was. If the whiskey was in fact ordered by defendant from Danville, and was in fact shipped thence in a *638gallon jug bj express addressed to Eastep, no witness went upon the stand to testify to those facts, and the jury has not so found the facts.
If these facts had been found, the question would have been presented whether our statute, making the place of actual delivery to the purchaser the place of sale, would apply to this case. State v. Patterson, 134 N. C., 612; Delamater v. South Dakota, U. S. Supreme Court, 11 March, 1907. But in the absence of such facts we cannot discuss an abstract proposition of law without facts on which to base the proposition. But it may be noted that even if those facts had been found, there would still arise other questions. The size of the package has been held material. Austin v. Tennessee, 135 U. S., 100; Cook v. Marshall County, 196 U. S., 261, in which last case Justice Brewer says: “It may be shown that the intent of the party concerned was not to select the usual and ordinary mode of transportation, but an unusual and more expensive one, for the- express purpose of evading or defying the police laws of the State. If the natural result of such method be to render inoperative laws intended for the protection of the people, it is pertinent to inquire whether the act was not done for that purpose, and to hold that the interstate commerce clause is invoked as a cover for fraudulent dealing, and is no defense to a prosecution under the State law.” The State has sole power to regulate or prohibit the sale of liquor. Barbier v. Connally, 113 U. S., 31. Was the shipment of one gallon of whiskey by express in a single jug from Danville, Va., to Lexington, N. C., a usual and legitimate act of interstate commerce, or was it merely an attempt to evade a law which the people of this State have enacted under their right of local self-government? If the transaction was merely “a cover for fraudulent dealing, it is no defense to a prosecution under the State law,” says the *639United States Supreme Court, supra, and tbis view should be submitted to tbe jury in all similar cases, that they may find how the fact is. In Calvert Regulation of Commerce, 127, the following are among the rules on this point deduced from the decisions of the United States Supreme Court:
“4. The size of the package in which bona, -fide transactions are carried on between the manufacturer and the wholesale dealer residing in different States is a material consideration.
“5. The motive which actuates the particular method of shipment may be determined from «several circumstances: (a) The trifling value of each parcel. (b) The absence of an address on each package, (c) The fact that many parcels, for the purpose of the shipment, are aggregated.”
The State will not allow its police regulations to be violated under cover of fraudulent shipments from another State, nor will the Federal courts, as the highest Federal Court has said, permit “the interstate commerce clause to be invoked as a cover” for defying or evading the State law. Calvert Regulation of Commerce, 124. Indeed, it is immaterial whether the defendant took orders for liquor to be shipped from a point outside or inside the State, for his act being in violation of the State law which regulates the liquor traffic, neither he nor the carrier is protected by the interstate commerce clause of the Federal Constitution. Delamater v. South Dakota, U. S. Supreme Court, 11 March, 1907.
If in this case the whiskey had in fact been shipped from Danville, Va. (though it is not so found), but was already, at the time of the purchase, in the express office, or elsewhere in this State, and was thereafter tagged with purchaser’s name, the defendant was ■ guilty, under the Wilson Act. Pabst Brewing Co. v. Crenshaw, 198 U. S., 17; In re Rahrer, 140 U. S., 545. If whiskey is manufactured in *640this State and sent into another in order to be reshipped in retail quantities to consumers here in violation of our police regulation of the sale of liquor on orders taken by the distiller’s agent, it is not the subject of interstate commerce. Crigler v. Commonwealth (Ky.), 87 S. W., 276.
In view of the enormous business notoriously done in the shipment of liquor into this State by express in jugs, the fact should be found whether such shipment is a bona fide exercise of interstate commerce or whether it is an attempt merely to evade the State’s regulation of the traffic in intoxicating liquor in the exercise of the police power.