#### Bunch v. State.

Opinion delivered November 30, 1908.

IuquorS' — sai,E in original packags. — Under Kirby’s Digest, § 5093, providing that manufacturers of alcohol, vinous, ardent, malt or fermented liquors can sell liquors in original packages containing not less than five gallons, without license, a distiller may draw five gallons of whisky from a barrel, place it in a keg, and when properly stamped sell it as an original package. State v. Southard, 60 Ark. 247, followed.

Appeal from Mississippi Circuit Court, Chickasawba District; Prank Smith, Judge;

reversed.

W. J. Driver, for appellant.

This case is settled by Kirby’s Digest, § 5093; 60 Ark. 247.

William P. Kirby, Attorney General; Daniel Taylor, Assistant, for appellee.

The court erred. The record shows no violation of the law. 60 Ark. 247.

Battue, J.

Sam Bunch was indicted by the grand jury of the’ Mississippi Circuit Court for the Chickasawba District of Mississippi County for selling liquor without license. He was tried and convicted, and appealed to this court.

The defendant was a licensed distiller and manufacturer of whisky in Mississippi County. He manufactured a certain barrel of whisky, which was placed in a warehouse of the government and remained there the prescribed time, seven years, and thereafter became subject to his disposal, and was delivered to him after he paid the tax .thereon, one dollar and ten cents a gallon, and it was stamped to show such payment. When he paid' the tax on the barrel, the United States Government furnished him stamps, free of charge, to stamp each five gallons thereof when transferred into kegs of that .capacity. When he *231transferred five gallons of any barrel of whisky into such a keg, he sold the residue of the whisky in that barrel in the same manner, five gallon kegs, believing that he could not lawfully sell it in any other manner. In this case Will Pillow said to him that he wanted a five-gallon keg of whisky. He then drew from the barrel five gallons of the whisky into a keg of the proper size and stamped it as the law requires, and then sold and delivered it to him, he paying therefor, and signing a receipt for the same. Under the statutes of this State he had the right to sell in such packages without license. The barrel when stamped was delivered to him with no understanding, expectation or requirement that it should be sold as delivered. That was not the package in which it was offered only for sale. He was furnished with the requisite stamps for selling it in five-gallon kegs, and it stood offered in the barrel for sale in quantities of five gal-Ions in kegs, and when sold in that quantity, after being transferred to such kegs and stamped, it was sold in original packages containing not less -than five gallons, within the meaning of the statute authorizing the sale of whisky by the manufacturers thereof in that manner. State v. Southard, 60 Ark. 247.

Reversed and'remanded for a new trial.