Hancock v. State
133 S.W. 181
Ark.
1910
Check Treatment
Wood, J.,

(after stating the facts). The appellant was indicted under an act of April x, 1907, the first section of which reads as follows: “It shall be unlawful for any liquor dealer * * * engaged in the sale of intoxicating liquors in this State to in any manner, through agents, circulars, posters or newspaper . advertisements, solicit orders for the sale of intoxicating liquors in any territory in this State where it would be unlawful to grant a license to make such sales.”

The second section provides: “The presence of any such liquor dealer, firm or corporation, through agents or otherwise, in such prohibition territory, soliciting or receiving orders from any person therein shall constitute a violation of this act, and on conviction thereof shall be fined not less than $200 nor more than $500 for each such offense.”

The indictment charges appellant with having violated the above statute by sending into the prohibition territory “a circular in the form of a memorandum book” containing certain advertising matter (which is set forth), and thereby soliciting orders for the sale of intoxicating liquor contrary to the statute. The appellant contends that the indictment is fatally defective because the circular is described as being “in the form of a memorandum book,” which contained the advertising matter set forth therein soliciting orders for the sale of intoxicating liquors.

Construing this statute in Zinn v. State, 88 Ark. 273, where advertising matter somewhat similar to the advertising mattter set forth in the indictment was sent in a letter into the prohibited territory, we said: “The gravamen of the offense is the soliciting of orders for the sale. It is the presence of the circular there for the unlawful purpose of solioifing that the statute denounces and prohibits, not the method by which they may be conveyed there or distributed.” We may repeat here that the gravamen of the crime under this statute is the soliciting of the orders for the sale of intoxicating liquors in prohibited territory. The Legislature in the act under consideration undertook to prohibit -the soliciting of such orders by means of circulars, using the term to include any paper containing any written or printed matter, in whatever form issued, that showed upon its face, or bore internal evidence of the fact, that it was intended to be sent to several persons, or was intended for general circulation. Written or printed- matter, in the meaning of this statute, which is intended to be issued to a great number of persons or for general circulation is a circular, notwithstanding it may be issued in the form of a memorandum book or some other form. Kinney’s Law Diet. “Circular;” 2 Words & Phrases, “Circular;” Anderson’s Law Di-ct., “Circular;” Webster’s New In-t. Diet., “Circular.” As thus used, the term “circular” does not contravene the definition of -the terms “circular” and “circulars,” as those terms are used in classification for postal purposes. In the Federal Statutes Annotated, the term “circular” is defined to be “a printed letter, which, according to the internal evidence, is being sent in identical terms to several persons.” Vol. 5, § 18, p. 831.

Printed matter is defined to be “the reproduction upon paper, by any process except that of handwriting, of any words, letters, characters, figures or images, or any combination thereof not having a character of an actual personal correspondence.” Vol. 5, sec. 19, p. 831. “Mail matter of the third class shall embrace books, transient newspapers, and periodicals, circulars, and other matter wholly in print.” 5 Sec. 17, p. 831.

In the case of United States v. Clark, 22 Fed. Rep. 708, it is held that a schedule setting out the prices offered in a lottery, printed on the -back of all lottery tickets, sent out for a particular drawing, is a “circular” within the meaning of the Revised Statutes, § 3894, forbidding the mailing of any letter or circular concerning lotteries.” S'ee also other cases cited in appellee’s -brief. The character of the matter set forth in the indictment as contained in the memorandum book shows clearly that it was intended to be for several persons or general circulation among those who might be persuaded thereby to become customers of the saloon of which appellant was one of the proprietors. The matter constituted a printed circular sent in the form of a memorandum book. It was the substance of the circular, not the form thereof, that the Legislature had in mind when it enacted the statute. We must construe the terms according to their “usually accepted meaning in common language,” for that is the sense in which they must be supposed to have been used by the Legislature. See People v. McLaughlin, 68 N. Y. Sup. 1108.

The indictment was valid, and the evidence shows that aupellarit has committed the offense charged.

Affirm.