52 So. 873 | Miss. | 1910
Lead Opinion
after stating the facts as above, delivered the opinion of the court.
The paragraph of section 1746 of the Code of 1906, which is the ordinance of the city under which the defendant was convicted, is as follows: “If any person shall (a) sell or barter, or give away to induce trade, or keep for sale or barter, or to be
The history of what is commonly known as the “prohibition movement” in this state, which resulted in the enactment of the statutes on this subject now in force, shows that it was directed against the sale of intoxicating liquors. Construing all these statutes together, it is apparent that the object of the legislature was to prohibit the sale of intoxicating liquors. This
It is contended that the case of Edwards v. City of Gulfport, 49 South. 620, is authority for the instructions given in these cases for the state. The liquor sold in the Edwards case was “Pabst.Mead,” containing 4.6 per cent, alcohol to each bottle; and the testimony showed that two bottles of it would intoxicate an average man. The court charged the jury that, if the liquor sold was a malt or alcoholic liquor, they should find the defendant guilty, whether shown to be intoxicating or not. Judge Whitfield uses this language in that case: “This case falls squarely within the case of Reyfelt v. State, 73 Miss. 415, 18 South. 925. On the evidence in this case it is perfectly manifest that a conviction is proper on either one of two grounds: First, that the liquor was shown to be both alcoholic and malt liquor; and, second, that it was shown to contain enough alcohol to make an average man drunk if he drank two bottles.” Marks v. State, 159 Ala. 71, 48 South. 864, is referred to as authority for the Edwards case. It is true that in the Marks case (reviewing the statute substantially the same as section 1746, Code 1906) the Alabama court held that the language, “which if drunk to excess will produce intoxication,” did not relate to each and all the liquors preceding it. However, the court held further in that case (exactly contrary to what was held in the Edwards case): “Whether a beverage containing 1.46 per cent. of alcohol by weight, and 1.88 per cent, by volume, and .20 per cent, maltose, making 2% teaspoonfuls of alcohol per pint, is an alcoholic, spirituous, vinous, malt, or intoxicating liquor,
It is contended on behalf of the state that the purpose of the legislature was to prohibit the sale of all drinks as beverages containing alcohol in any quantity, however small; the object being not alone to lessen drunkenness, but to put out of reach of the people drinks which have a tendency to create a thirst for intoxicants. There is nothing in our statutes, nor in the history of the “prohibition movement,” to indicate such purpose.
If the charges complained of in the instant cases, and which were authorized by the Edwards case, are the law, then if a person should sell, as a beverage, a barrel of water with a teaspoonful of alcohol in it, he would violate this statute; and so-would the owners of soda fountains, selling the usual cold drinks, using various extracts in the same, containing a small portion of alcohol for their preservation.
These views necessitate, in my judgment, the overruling of so much of the Edwards case as holds that the charge in question in that case was a correct statement of the law. That case stands alone, unsupported, and. is unsound.
In.both of these cases the court should have instructed the jury peremptorily to find a verdict for the defendant, because neither of the drinks sold was shown to be intoxicating when drunk to excess. In ease No. 14,301, if the “Malt Ale” sold had been proven to be ordinary ale, then the jury would have
The judgments in these cases, both of them, are, therefore, reversed and the causes remanded.
Reversed.
Dissenting Opinion
delivered the following dissenting opinion.
I feel constrained to differ with both of my Brethren in the construction put by them upon the statute in question. When this statute was under review in Reyfelt v. State, 73 Miss. 416, 18 South. 925, this court said: “The statute, for a violation of which the appellant was convicted, makes it unlawful to sell, inter alia, any ‘vinous or alcoholic’ liquor. The defendant sold home-made wine made from the grape and from blackberries, which wine he and his witnesses swore would not intoxicate. ITe asked the court to instruct the jury to acquit, if it believed from the evidence the wine would not produce intoxication. This the court declined to do> but charged the jury to convict if the sale of wine was proved. This action of the court was correct. The legislature, believing in chemistry, and that the process of fermentation of the juice of the grape will produce alcohol, has seen fit to prohibit the sale of such product, and, regardless of the opinion of the witnesses that this prohibited article would not intoxicate, the sale was unlawful, for the legislature prohibited such sales because it thought that alcoholic wines would, in some instances, intoxicate.”
This was a square adjudication that the words, “which if drunk to excess will produce intoxication,” did not qualify the terms “vinous, alcoholic, malt, intoxicating, or spirituous liquors.” The court in its opinion said nothing about judicial notice, but held that it was unnecessary to j>rove that vinous or alcoholic liquor was intoxicating for the sole reason that the
The words,“alcoholic liquor” have a plain and definite meaning; that is, a liquor containing alcohol, and, since the legislature has not limited the amount of alcohol such liquor must contain in order to come- within the prohibition of the statute, this court has no right to do so. The legislature meant to establish and fix a certain guide for'the courts in administering this statute, and did not intend to leave it to the juries to say when alcohol was, or when it was not, the dominating quantity of the liquor.
Suggestion ok Error.
After the delivery of the foregoing opinions counsel for appellee presented a vigorous suggestion of error.
delivered the opinion of the court in response to the suggestion of error:
The same appellant is here on appeal in two cases; one being No. 14,306 and the other No. 14,307. For convenience I follow the method adopted by -Judge Anderson, and discuss the two cases in this opinion. Both cases charge the unlawful sale of “vinous, malt, alcoholic, intoxicating, and spirituous liquors.” Both originated in prosecutions conducted for a violation of the ordinance of the city of Jackson in the court of the police justice of the city. The ordinances of the city prohibiting the sale or barter of intoxicating liquors are rescripts of chapter 115, Laws 1908. In discussing these cases, therefore, I shall deal with them as though they arose under the act.
The facts in both cases are agreed to, and on the trial in the circuit court the agreed facts constituted all the testimony. In case No. 14,306 it was agreed that the beverage sold was “Brewett,” and contained eighteen one hundredths of one per centum of alcohol by volume, and thirteen one hundredths of one per centum of alcohol by weight. There is no proof in the record as to how this “Brewett” is made — that is to say, whether or not it is a malt liquor — -nor is it proven to be vinous, or spirituous. The agreed facts show only that it contains a small quantity of alcohol. Under the agreed facts this beverage, therefore, if a prohibited liquor, must be such a prohibited liquor as falls within the class designated as “alcoholic liquor.” Case No. 14,307 charges the same offense; but the agreed facts show that the beverage in that case was “Malt Ale,” and contained two and seventy-one one hundredths of one per centum of alcohol by volume and two and twelve one hundredths of one per centum of alcohol by weight. In the latter case the agreed facts concede that it is a malt liquor.
It may be also stated that courts take judicial notice of the fact that any liquor containing more than two per centum of
Chapter 115, p. 116, Laws 1908, enumerates certain classes of liquors which cannot be sold, or bartered, under any condition. The statute prohibits the sale of such liquors as it expressly names, without regard to their intoxicating or nonintoxicating quality, and without reference to what quantity of alcohol may be contained in them. If a party is charged with merely selling an “alcoholic liquor,” and such liquor is neither vinous, malt, or spirituous, if the quantity of alcohol is so negligible as not to constitute the beverage sold an “alcoholic liquor,” of course there can be no conviction of a sale of such liquors, even if it be shown that in truth there is some alcohol in the beverage. There must be enough alcohol in it to make It “alcoholic” as the statute' says; but I shall discuss this particular subject later.
The liquors expressly named which the law prohibits from being sold are “vinous, alcoholic, malt, or spirituous liquors, or intoxicating bitters.” The sale of these liquors is prohibited without reference to whether in fact they intoxicate, but because It is well known that this class of liquor is of an intoxicating character. After expressly prohibiting the sale of the character of liquors named above, the statute then prohibits the sale of another class not enumerated, which are “all other drinks which
In the latter of the above cases, the court, construing a statute similar to this, very pertinently asked: “If it were intended that only such of these as could be shown to be intoxicating should be included, why name them at all ? Why not simply say that all intoxicating liquors and drinks should be prohibited ?” In brief, the statute says that “vinous, alcoholic, malt, intoxicating,
I do not think the constitutionality of statutes of this character can be successfully controverted. The police power of a state is broad enough to prohibit the sale of those things which it considers destructive of the health, the good morals, and the peace of its citizens. If the state has this power, it is necessarily vested with the authority to make its laws effective, and the subterfuges and disguises resorted to by the ingenious violators of the liquor laws are as well known to the legislator and the judges as to those who violate the law. ' Knowing the schemes resorted to by those who would destroy the prohibition laws and make them farcical by their failure to give that protection from the evil of intoxicants which is- their design and purpose, the legislature has met all schemes of those who would evade, by prohibiting the sale of all subterfuges. It' has prohibited the sale not only of intoxicants, but of that character of liquors that go hand in hand with intoxicants; that is, have the character of intoxicants, though in truth they do not intoxicate. The police power of the state is not so impotent and restricted' as that it cannot combat and repel all evasions. We hear much of the constitutional rights; but no man’s rights are infringed upon by this act of the legislature, and the construction which I give it, and which this court has given it, unless such person desires to engage in the sale of intoxicants. Surely the state can say to such person that you cannot profit in the sale of this contraband article of merchandise, no matter how small the quantity sold, or by what name you call it. If this great power of the state could be thus thwarted by those engaged in criminal acts, it would indeed he an impotent thing. In criminal and in civil
I have no hesitancy in saying that the sale of “Malt Ale,” no matter what the quantity of alcohol in same may be, is expressly prohibited by the statute, and any person selling same has violated the law. The agreed facts in case No. 14,307, where the appellant agrees that he was selling a liquor known as “Malt Ale,” constitute a violation of the law. Not only did he violate the law by selling “Malt Ale,” as stated in the agreement, but the facts in that case show that this liquor contains two and seventy one hundredths per centum of alcohol by volume, and two and twelve one hundredths per centum of alcohol by weight, which is an intoxicating liquor. I have more difficulty in applying the law to the second case, No. 14,306, because the agreed facts do not show that “Brewett” is a malt drink. I do not feel warranted, in the absence of proof of this fact, in assuming that it is a malt drink. If it were proved that “Brewett” was a malt drink, I would unhesitatingly be in favor of an affirmance of this case, because no malt drink can be lawfully sold. Therefore “Brewett,” if a prohibited liquor, must be classed under that section of the statute which prohibits the sale of any alcoholic drink. In this view of it I cannot make up my mind to declare, as a matter of law, that a beverage which contains only eighteen hundredths of one per centum of alcohol by volume, and thirteen hundedths of one per centum by weight, is, under the law, an alcoholic drink. It seems to me that the quantity of alcohol in this drink is too negligible to be classed as an alcoholic drink. In many states where the sale of “alcoholic drinks” is prohibited, the legislature has fixed a standard by which courts may be governed in determining whether a drink is alcoholic or not. Some of the states
I concur with Judge Anderson in the reversal of case No. 14.306, but think that the judgment in case No. 14,307 should be affirmed both because it is shown that appellant sold “Malt Ale,” expressly prohibited .from sale by the statute, and further because the liquor is an intoxicating liquor.
It follows from these views that the former judgment in case No. 14,307, reversing same, shall be vacated, and a judgment of affirmance now ,entered. In case No. 14,306 the suggestion of error is overruled, and on retrial the court below is directed to give a peremptory instruction to discharge defendant on the agreed facts in same.
Judgment.in one case affirmed, m the other reversed.
Concurrence Opinion
concurred in the order reversing cause No., 14.306, but dissented from the reasons assigned therefor. In cause No. 14,307, Anderson, J., dissented in toto, adhering in both eases to the view expressed in his original opinion.
Concurrence in Part
delivered the following opinion, concurring in one case and dissenting in the other.
As I must adhere to the views expressed by me when these cases were first before the court, it follows therefrom that I concur with Brother Mayes in holding that the liquor sold in cause Not 14,307, known as “Malt Ale,” containing two and seventy-one hundredths per centum of alcohol by volume, and two and twelve one hundredths per centum of alcohol by weight, is both a malt and an alcoholic liquor, and therefore its sale is prohibited by the statute. It also follows that I dissent from the view expressed by him that the liquor sold in cause No. 14,-306, which contained eighteen hundredths of one per centum of alcohol by volume, and thirteen hundredth of one per centum of alcohol by weight, is not an alcoholic liquor. In my opinion the amount of alcohol which a beverage contains is immaterial. Its sale is prohibited by the statute if it contains any alcohol.
