delivered tbe opinion of tbe court.
Tbe evidence in tbis case shows without conflict that tbe offer •to purchase tbe whiskey, the acceptance thereof, and the payment of the price occurred in the state of Louisiana, near the Mississippi line, and that the whiskey was delivered across the line in the state of Mississippi. Appellant’s request for a per■emptory instruction, therefore, was properly refused. Jenkins v. State, 82 Miss. 500, 34 South. 217. And while the instruction given the state may not be a strictly accurate announcement, of the law, still, as applied to the facts of this case, it ■could not have misled the jury.
The third instruction requested by the appellant, charging the jury that they could not convict him unless they believed beyond a reasonable doubt that he sold the whiskey, correctly announced the law; but its refusal worked no prejudice to- him, for the reason that the jury Was1 specifically told in the state’s instruction that they must believe beyond a reasonable doubt that the defendant sold the whiskey before they could convict-him.
The matters complained of with refei’ence to the admission ■and exclusion of testimony cannot be considered, under the rule announced in Richburger v. State, 90 Miss. 806, 44 South. 772. There was no error in the other matters complained of.
Affirmed.
After the delivery of the above opinion, counsel for appellant filed an elaborate suggestion of error, reiterating that as delivery only occurred in Mississippi, the statute law of this state was in no way violated. In response to which, the following opinion, on suggestion of error, was delivered:
*221Smith, J., delivered tbe opinion of tbe court in response to tbe suggestion of error.
We bave very carefully reconsidered this cause, and must, adhere to our former opinion. Appellant suggests that, as delivery only occurred in tbis state, the laws thereof were not violated; and be relies upon Tate v. State, 91 Miss. 382, 44 South. 836. Counsel has misconceived tbe ground of that decision.. In that case tbe appellant did not himself sell any whiskey. If guilty at all, it must bave been as an accessory to an unlawful sale, thereby becoming a principal; tbe crime charged being-a misdemeanor. Tbe whiskey was purchased in Canton, where it was lawful so to do, and there, in Canton, delivered by the-seller to tbe agent of the purchaser. Tbis, in contemplation of law, was delivery to the purchaser. The sale was therefore complete in territory where it was lawful to make same.
In the case at bar, stating the facts more fully than in our-former opinion, the purchaser sought the seller for the purpose-of purchasing whiskey from him, met him at his (the seller’s) yard gate in Louisiana, a short distance from the Mississippi line, and contracted with him for the purchase, not of any particular whiskey, but of nine bottles of whiskey, to be after-wards set apart for and delivered to the purchaser. This delivery was made by the seller in Mississippi, a short distance-from the Louisiana line. No property passed in any liquor by-virtue of the executory contract made in Louisiana. It remained the property of the seller until it was set apart for- and delivered to the purchaser. When this was done, the sale was complete, and, in contemplation of law, was made at the-place of delivery. “The statutory offense of selling spirituous liquors without license is committed by the sale which passes the property, and not by negotiations and bargains which -precede the sale.” Banchor v. Warren, 33 N. H. 183.
This whole matter was practically settled by the decision of this court in the case of Pearson v. State, 66 Miss. 510, 6 *222South. 243, 4 L. R. A. 835. In that cas© tbe oiler to sell, the acceptance thereof, and the payment of the purchase money ■occurred in Mississippi; but the delivery was made in Memphis, Tennessee. This sale was held to be complete, not in Mississippi, but in the city of Memphis. The court, speaking through Judge Campbell, said: “The point is: Where was delivery made? If the seller was to deliver the whiskey in Panola county, before any right accrued to him to claim pay for it, the •sale was not complete until delivery at the place of its destination ; but, if the delivery was in Memphis to the carrier as the ■agent of the buyer, the sale was then complete, and the law of Mississippi was not violated. A delivery to the carrier in the usual course of trade is deemed by law prima facie a delivery to the consignee, and according to the testimony that was the understanding of the parties in this case.”
"While the court referred to the time when the seller was entitled to demand payment, this was only by way of argument. The real question in the case, and the point on which the decision turned, was: “Where was delivery made ?”' A sale may be complete, and the title to the property pass, although the purchase price agreed on may never in fact be paid. Among the cases supporting the foregoing views are Banchor v. Warren, 33 N. H. 183; Dunn v. State, 82 Ga. 27, 8 S. E. 806; 3 L. R. A. 199; City of Spring Valley v. Henning, 42 Ill. App. 162; Suit v. Woodhall, 113 Mass. 391; Northcutt v. State, 35 Tex. Cr. R. 584, 34 S. W. 946; Commonwealth v. Hugo, 164 Mass. 157, 41 N. E. 123. See, also, 17 Am. & Eng. Ency. of Law, 301.
As this sale was made in Mississippi, appellant’s guilt or innocence does not depend on Code 1906, § 1404. It is not necessary, therefore, for us to respond to counsel’s comments thereon. Suggestion of error overruled.