136 A. 791 | Pa. | 1927
Lead Opinion
Argued January 11, 1927.
Defendant was indicted in the Court of Quarter Sessions of Cambria County for illegally possessing intoxicating liquor in violation of the Act of March 27, 1923, P. L. 34. At the trial, the Commonwealth proved the discovery of three quarts of whiskey in his home, which admittedly contained more than one-half of one per cent alcohol. In defense, appellant, admitting the purchase of the liquor in 1925, without a physician's prescription, explained, as did his wife, that it had been secured solely for medicinal purposes, and was used in rubbing his legs for rheumatism, and upon the gums of his children who were teething, but denied that it was intended or ever used for beverage purposes. The court instructed the jury, in part, as follows: "When, in a criminal prosecution, the defendant is charged with the unlawful possession of intoxicating liquor, and the defendant's defense is that the liquor was possessed for medicinal purposes only, that is no defense when the defendant admits he did not procure the intoxicating liquor on a physician's prescription." Timely objection was made to this statement, but the court refused to modify it, and a conviction resulted. A motion for a new trial was refused, and *513
sentence imposed. On appeal to the Superior Court the judgment was affirmed (Com. v. Berdenella,
It will be noticed that this is not a prosecution under the federal Volstead Act charging an illegal purchase of liquor, of which the defendant, under the evidence, may have been guilty. Nor is it a proceeding charging illegal holding under that legislation. If that were the case, it would have been necessary for defendant to show the possession had been legally acquired through the medium of a physician's prescription, for that statute so provides, though the presumption of wrongdoing was a rebuttable one: Street v. Lincoln Safe Deposit Co.,
The learned Superior Court was of belief that a liberal interpretation of the Snyder Act should be made so that proper enforcement within the Commonwealth could be secured, and, in effect, held the provisions of the Volstead Act should be read into it, so that a defendant must show not only that the liquor was not for beverage purposes, but that its possession had been legally secured by means of a physician's certificate, requirements which we will later show are not to be found in the legislation under which defendant was indicted. This was on the theory that the general policy of the State required such broad interpretation so that any traffic in, or use of, intoxicating liquors might be restrained.
Justice SHARSWOOD said, in Dame's App.,
"Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being indictable or punishable at common law. It is therefore a general rule that, if a sale of intoxicating liquor, or any other act in relation to it, is made the basis of a prosecution, the act complained of must be shown to be within the terms of some valid or operative statute, which was in force before the commission of the alleged offense, and which made it a crime and prescribed a penalty or punishment": 33 C. J. 575. *515
The Snyder Act is penal and must therefore be strictly construed. And it is needless to cite authorities to show it could not be constitutionally enforced except as to matters set forth in the title, or germane thereto. The words there used are, "Concerning alcoholic liquors; prohibiting the manufacture, advertising, furnishing, traffic in and possession of intoxicating liquors for beverage purposes, and articles and substances designed or intended for use in the manufacture thereof," with other phrases immaterial to this discussion. When we turn to the forbidden acts which are penalized, we find, in section 3, the prohibited possession of liquor is that for beverage purposes, and the same limitation is found in section 4, but even the possession of liquor for beverage purposes is not in all cases made unlawful; for example, intoxicants acquired before the act may be lawfully kept by the owner or his representative in the dwelling house in which he lived when the act was passed, or in a building which thereafter may become his bona fide residence as contemplated by section 2, paragraph [d], and section 4. Nowhere in the act is the illegal acquirement of liquor made an offense, as in the Volstead Act, but the crimes defined deal solely with the manufacturing, selling or offering to sell, bartering, furnishing, possessing or delivering, liquor for beverage purposes.
It has been suggested that a consideration of section 13 might justify a different view, but to this we cannot agree. That paragraph is headed, "evidence and pleadings," and defines no criminal offense whatever. It provides that possession of liquor shall be prima facie evidence that it was secured for beverage purposes, but this is a rebuttable presumption: Hawes v. Georgia,
The proof of possession by the defendant raised the presumption that the liquor was to be used for beverage purposes, and the defendant had the right to rebut this (33 C. J. 743), and show that he intended a medicinal use. It was for the jury to pass upon the correctness of the version given, and the court below should have so instructed. We have been unable to find precedents where a like question was presented, except in Texas. There the enforcement act provided liquor could only be acquired on prescriptions of physicians, but the act failed to penalize transporting for lawful purposes. The lower court was reversed for refusing to allow defendant to show the liquor was intended solely for medicinal use: Mayo v. State, 245 S.W. 241; Fuller v. State,
In Whitehead v. Com. (Ky.),
The defendant here can be convicted solely of the crime of possessing for beverage purposes, as defined in the Snyder Act. He has the right to rebut the presumption *517 raised against him as expressly provided in that legislation. He should have been permitted to do so, and the court should have charged the jury it was a good defense, if the proof met the prima facie case and was believed. In refusing to so instruct prejudicial error was committed which requires a reversal. As before noted, this is not a prosecution under the Volstead Act, nor is there any justification in the wording of the Snyder Act for reading the terms and provisions of the former into it. If the defendant could satisfy the jury he did not possess the whiskey for beverage purposes he was entitled to an acquittal.
The judgments of the Superior Court and of the Court of Quarter Sessions of Cambria County are reversed, and the record is remitted to the latter tribunal with directions to grant a new trial.
Dissenting Opinion
Being of the opinion that, when the trial judge instructed the jury "Where, in a criminal prosecution, the defendant is charged with the unlawful possession of intoxicating liquor, and the defendant's defense is that the liquor was possessed for medicinal purposes only, that is no defense when the defendant admits he did not procure the intoxicating liquor on a physician's prescription," he correctly stated the law, since only thus could it legally be obtained for that purpose, and that the Superior Court, interpreting the provisions of the Act of March 27, 1923, P. L. 34, one of which is that "All of its provisions shall be liberally construed" correctly held that "The only person who can present the defense that intoxicating liquor obtained by him since March 27, 1923, was possessed for medicinal use is one who has so acquired it lawfully, that is, one who has obtained it from a duly registered pharmacist upon the prescription of a duly licensed physician," I would affirm the trial court and the Superior Court, and, therefore, dissent *518 from the reversal of their judgments and the grant of a new trial.
Mr. Justice WALLING and Mr. Justice SIMPSON join in this dissent.