Decided on authority of Adams Express Company v. Kentucky, ante, p. 129.
MR. JUSTICE BREWER delivered the opinion of the court.
This case differs from the preceding in the fact that it was tried by the court without a jury. In all other respects it is substantially the same. There was the same averment in the indictment; and more than that, there was an express stipulation made between counsel pending the trial in these words:
"It is further agreed at this point that the whiskey about which the witness testified was delivered by the Adams Express Company and received by it in its office in Cincinnati in the usual course of business as a common carrier, and carried by it to Barbourville, Kentucky, by the method commonly known as C.O.D."
There is nothing, therefore, to distinguish this case in principle from the preceding, and the same judgment will be entered in this as in that.
MR. JUSTICE HARLAN dissented. See p. 141, post.