Looney v. State , 156 Tenn. 337 ( 1928 )

The plaintiff in error has been convicted of unlawful transportation of liquor in a quantity exceeding one gallon and sentenced to two years in the penitentiary. The indictment contained only two counts. In one of these counts it was charged that he did personally transport certain intoxicating liquors, to-wit, one gallon or more into the State of Tennessee, etc., from some place beyond the limits of the State of Tennessee, and in the other count it was charged that he did personally transport certain intoxicating liquors, to-wit, one gallon or more, from one point to another within the State of Tennessee, etc.

The State's proof showed that police authorities at Knoxville had received complaint about liquor being handled at a certain garage in that city. This garage contained room for about twelve automobiles and space therein was rented to various parties. The plaintiff in error had rented space for his car and had in the garage a Ford coupe. Police officers went to the garage about three or four o'clock one morning and concealed themselves. Some time later they saw plaintiff in error in a Ford touring car, in company with a woman, drive to the entrance of the garage. He went in and removed from the coupe two half gallon jars of white corn liquor and took them to his touring car at the entrance of the building. At this point the officers came out and arrested him. They thereupon searched his Ford coupe which had been in the garage and found about fifty half gallon jars of a similar liquor in the latter car.

As stated above, plaintiff in error has been convicted under an indictment charging personal transportation alone, and we do not think that the evidence justifies his conviction of this particular offense.

Carrying the two jars of liquor from the car within the garage to the car at the entrance of the garage did not amount to transportation. This was upon premises of which plaintiff in error was a lessee, his own premises, and both cars were upon the same premises. Kizer v.The State, 140 Tenn. 582.

In his own testimony plaintiff in error stated that he had loaned his Ford coupe to a friend to take a trip out into the country where it was supposed that liquor was to be had. Plaintiff in error said that he was suffering with a cold and asked this friend to bring him back some liquor if he could get it. That he (plaintiff in error) went to the garage on the morning of his arrest to see if his friend had brought him any liquor, and that he (plaintiff in error) knew nothing about the large quantity of liquor that was found in his coupe.

Chapter 12 of the Acts of 1917, regulating the handling of intoxicating liquors, among other things, makes it unlawful "to personally transport into this State or from one point to another within this State, even when intended for personal use, intoxicating liquors, etc." Chapter 2 of the Acts of 1923 amends the Act just mentioned so as to make such transportation in a quantity of one gallon or more a felony.

While it may be inferred from the proof in this case that some one did transport the large quantity of liquor found in the coupe of plaintiff in error from some other place to the place in which it was discovered, there is nothing to indicate that plaintiff in error personally was guilty of this transportation. He says he was not and there is no testimony nor circumstance to the contrary.

Plaintiff in error could not be deemed guilty under Section 6429, Thompson-Shannon's Code, with reference to aiders and abettors. The particular offense here under consideration as denounced in the Statute is the personal transportation of intoxicating liquors. A personal act is "one done in person, without the intervention of another." International Dictionary. Another must be involved before there can be any such thing as aiding and abetting. If an offense is personal in terms it must be personally committed before a conviction can be had.

On the proof in this record, it is entirely possible that the plaintiff in error may be guilty of the unlawful receipt or of the unlawful possession or of some other offense in connection with the handling of intoxicating liquor. We do not, however, find adequate evidence to sustain this conviction upon a charge of personal transportation of intoxicating liquor and this is the only charge upon which he was arraigned.

The conclusion we have reached is very well sustained by authority.

In Harney v. The State, 76 Tenn. (8 Lea), 113, this court approvingly quoted 1 Bish. Crim. Law, sec. 756, as follows: "If the terms of a Statute distinctly limit the penalty to persons who participate in an act only in a certain way, these terms furnish the rule of the court." So applying the law, the court held that one who purchased intoxicating liquor was not guilty as aider and abettor under a Statute which made it unlawful to sell and tipple intoxicating liquor within four miles of an incorporated institution of learning.

Mr. Bishop likewise calls attention to "crimes which in their nature can be committed only by a personal doing of the forbidden thing." Bish. Crim. Law, secs. 364, 689.

In Ruling Case Law it is said to be "probable that the rule that all felonies admit of principals in the second degree is subject to the exception that where a statute applies only to the person actually doing the thing which constitutes the offense, and not to all who are guilty, e.g., persons selling liquor without a license, persons aiding and abetting such offenses are not principals." 1 R.C.L., 136.

The plaintiff in error will be held until the District Attorney-General considers whether or not another indictment shall be brought. Reversed.