49 F. 360 | D. Mont. | 1892
The petitioner was arrested on complaint made before a United States circuit court commissioner for selling to an Indian in charge of an Indian agent spirituous liquor, to-wit, one bottle of beer. Section 2139 of the Revised Statutes of the United States provides :
“Every person (except an Indian in the Indian country) who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to an Indian under the charge of any Indian superintendent or agent * * * shall be punished by imprisonment for not more than two years, and by a fine of not more than three hundred dollars.”
It is claimed on the part of petitioner that the term “spirituous liquor,” does not include beer. “The popular or received import of words furnishes the general rule for the interpretation of public laws as well as private and social transactions.” Maillard v. Lawrence, 16 How. 261; Arthur v. Morrison, 96 U. S. 108; Martin v. Hunter’s Lessees, 1 Wheat. 326; Sedg. St. & Const. Law, § 220. What is the gen eral, definition of “spirituous liquors?” The definition of the word “spirituous,” as given by Webster’s Dictionary, is: “Containing spirit; consisting of refined spirit; ardent; as, spirituous liquors.” If we turn to the word “spirit,” we find this ais a definition of that word: “Hence a liquid produced by distillation, especially alcohol; the spirits of wine from which it was first distilled. Hence rum, whisky, brandy, and other distilled liquors having much alcohol, in distinction from .wine and malt liquors.” Turning from the definition given in,, the dictionary to legal authors, we find: “Spirituous liquor is composed, wholty or in part, of alcohol extracted by distillation. It need not be rectified, — that is, it is within the terms, though it has passed through the still once. Fermented liquors are not included.” Bish. St. Crimes, § 1009. “In common parlance, ‘spiritu
There are two eases which define “spirituous liquor” so as to include “beer.” These are Nevin v. Ladve, 3 Denio, 43, and State v. Giersch, 98 N. C. 720.
“The rule that penal laws are to be construed strictly is perhaps not less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not'the court, which is to define a crime, and ordain its punishment. It is said that, notwithstanding this rule, the intention of the law-maker must govern in the construction of penal as well as other statutes. This is true, but this is not a new, independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: that, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which these words in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The ease must be a strong one, indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of equal atrocity, or of a kindred character, with those which are enumerated.”
These remarks of that distinguished jurist I quote as an answer to the remarks of the able counsel for the government, who are most energetic and persistent in looking after offenses against national law within this jurisdiction. And I also would place them in contrast with some of the views of . the learned court as expressed in the case of State v. Giersch, supra.
I do not think the provisions of the statute of July 4, 1884, (23 U. S. St. p. 94,) can be called a legislative construction of section 2139, under consideration. It does not purport to be such á construction, and is in no true sense a construction of the same. For the reasons assigned I
4 S. E. Rep. 198,