83 Neb. 455 | Neb. | 1909
Lead Opinion
This case was decided at tbe September term, 1907, of this court, and the opinion is reported in 80 Neb. 432. The attorney general filed a motion for rehearing, which was sustained, and the case has been submitted to the court upon carefully prepared briefs and able oral arguments by counsel. The contention of the attorney general is: First, that the proof upon the trial was conclusive that the liquor sold and kept for sale was “malt liquors,” and therefore the selling and keeping for sale of the liquors described was a violation of law, and the conviction should be sustained without any inquiry as to the intoxicating or nonintoxicating properties of the liquor; second, that, should the court hold otherwise, the question of the intoxicating quality of the liquor kept for sale and sold was sufficiently submitted to the jury, and that in that event the judgment should be affirmed. It is contended by .plaintiff in error: “First, it is not a violation of our liquor law to sell a malt extract, unless the same is shown to be of such an intoxicating character that it -may be used as a beverage, and that when used in practicable
It is charged in the first count of the information that plaintiff in error unlawfully kept for the purpose of sale “certain malt and intoxicating liquor, to wit, malt tonic,” with intent to sell the same; and in the second count that he unlawfully sold to a person named “certain malt and intoxicating liquor, to wit, malt tonic”; and in the third count that he sold of said liquor to another person; and in the fourth count that he sold the same to a person named; and in the fifth count that he sold the same to yet another person named. The jury returned a verdict finding plaintiff in error guilty on all the counts of the information. The court imposed a fine of $ 100 upon each count.
It was shown upon the trial that upon the filing of the complaint before the magistrate a search warrant was issued, and the sheriff in making a search of the premises of plaintiff in error found “four full barrels and about a half barrel” of the liquor. There was ample proof that the liquor was kept for sale and sold to be drunk as a beverage, and that a considerable quantity of it had been sold and consumed. The liquor was in bottles, each bottle bearing an illuminated label as follows, omitting names and locality of the brewing company: “-Brewing Company’s NON INTOX. A nonintoxicating malt tonic. Guaranteed to contain less than 2$ of alcohol. Brewed and bottled by the- Brewing Co., -, Illinois. Western Branch, -, Mo.” The state chemist was called as a witness on the part of the state, and testified that samples of the liquor had been sent to and analyzed by him, and that the liquor was malt liquor; that all liquors that were brewed from malt were necessarily malt
It is contended by the state that under our statutes it was not essential that the prosecution should go farther with its proof; that if the liquor was a “malt liquor” and belonged to the class known as beer, the statute having prohibited the sale of “malt liquor,” and this court having so often decided that the courts will take judicial notice that beer is an intoxicant, the verdict was right and should be sustained. Chapter 50, Comp. St. 1907, commonly known as the “Slocumb Law,” provides in the first section that licenses may be issued for the sale of “malt, spirituous and vinous liquors.” In section 6 the issuance of a license to sell “malt, spirituous and vinous liquors” is prohibited, unless the applicant gives the bond required by the section. Section 10 prohibits any licensed person from selling intoxicating liquors to the classes of persons named therein. Section 11 provides that “all persons who shall sell, or give away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks,” without having first complied with the provisions of .the act, and obtained a license, shall be deemed guilty of a misdemeanor and punished as prescribed in the section. Section 13 makes it a crime for any licensed person to sell or give away, either by himself or another in his employ, any “malt, spirituous, or vinous liquors,” which shall be adulterated. Section 14 makes it a crime to sell or give away
We have thus quoted from the different sections of the law for the purpose of seeking light upon the legislative intent in the passage of the act under consideration. It is contended by counsel for plaintiff in error that it was the legislative intent to suppress the sale of intoxicating liquors, and that, although the term “malt liquors” is used in the act, yet it was not the purpose to prevent the sale of malt liquors or liquids, unless they contained a sufficient quantity of alcohol to produce intoxication; or, stated differently, that the language used in sections 11 and 20 must be construed to mean as if it read “intoxicating malt liquor.” I cannot read the statute in that light. As well might Ave apply the adjective to the words “spirituous” and “vinous.” It is my opinion that the legislature realized and appreciated the fact that malt, spirituous and vinous liquors are equally largely used as a beverage, and are alike injurious to the consumer, if not by producing immediate intoxication when taken in small quantities, by producing the same effect when more is taken, and at the same time creating an abnormal appetite which leads to dissipation and inebriety. At any rate, the law pro
It is claimed that the words “malt, spirituous, or vinous liquors” and “intoxicating drinks,” as used in section 11, and “intoxicating liquors,” as used in section 20, are used interchangeably, and all mean the same. To this we cannot agree. As we have seen, the statute prohibits the sale of either “malt,” “spirituous,” or “vinous” liquors in specific terms by name. As said in many of the cases above cited, this is a specific and direct prohibition, but the legislature, recognizing the fact that there are . other intoxicants which do not come strictly within the classes named, the words “or any intoxicating drinks,” as in section 11, and “any intoxicating liquors,” as in section 20, were used to cover all kinds not within the classes named; that, if the charge and proof are that any one of the classes were sold or kept for sale, no proof of the intoxicating property of the liquor was necessary, and that it is only necessary to prove that the liquor sold or kept for sale is one of the classes forbidden. But, should the accusation refer to any other kind of liquor, it should be alleged and proved that the article was intoxicating. This, I think, is the correct interpretation of the statute and without further inquiry the judgment of the district court should be affirmed.
However, there is another feature of this case upon which we all agree, and that is, whether correctly or incorrectly, the district court did submit the question of the intoxicating quality of the liquor to the jury, and that by their verdict the jury answered the question. The averments of the information are that, at the time and place named in the several counts, plaintiff in error kept for sale and sold “certain malt and intoxicating liquor, to wit, ‘malt tonic,’ ” etc. The same language, descriptive of the a:'tide sold or kept for sale, is used in each of the five counts in the information. The widest latitude was allowed plaintiff in error in his efforts to prove that the
The court instructed the jury that the material allegations which the state must prove were that the plaintiff in error kept or sold liquors “as charged in the information”; that in order to convict it was necessary that the proof show that plaintiff in error had the liquors “described in the information” and sold the same. It is not deemed necessary to further refer to thp instructions. It is sufficient to say that the instructions, while not as explicit as they might have been, had any Upon that point been necessary, yet, when taken in connection with the evidence, were sufficient to submit the question of the intoxicating properties of the liquor to the jury. We are of the opinion, however, that the question was improperly submitted, and that no evidence should have been received upon that subject. The error, however, having been by the procurement of plaintiff in error, and in no sense to his prejudice, he cannot complain.
The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
I cannot agree to the main holding in the opinion. It seems to hold that the selling of all malt liquids or
There are many tonic preparations of malt combined with ingredients, such as iron, phosphates or other drugs, and other and nourishing preparations of malt combined with ingredients of food value for the use of convalescents, which are in constant use by the medical profession, and which are sold in drug stores. This opinion, construed strictly, would drive all this class of preparations from
Unless we consider that the liquors kept for sale must be intoxicating liquors in order to make the act of keeping them unlawful, we must presume that the legislature would forbid the keeping of inoffensive liquors, and in the same section provide that the person who was found keeping intoxicating liquors should be punished, without providing that the person keeping the other forbidden liquors should be punished; in other words, that the legislature would prohibit the keeping' of liquors, but provide no punishment therefor, and then provide punishment for keeping intoxicating liquors which it had not specifically prohibited. Iri this same section the word “liquor” is used seven or eight times without any quali
Cases from other states throw but little light upon the question, since in order to reach the true meaning of each opinion the whole statute must be considered and compared with the statute in this state. But the courts of other states are not in harmony, the holding of the different states depending upon the interpretation and construction of the respective statutes. In Pennsylvania, Illinois and Maine the cases cited by Judge Reese hold specifically that proof of the intoxicating quality of malt liquor is unnecessary. In Minnesota it seems to be held that a charge of selling malt liquor implies that the liquor has intoxicating qualities. It is said in State v. Gill, 89. Minn. 502, cited in the majority opinion, that whether or not the liquor was really intoxicating is a question of fact for the jury, See, also, State v. Story, 87 Minn. 5. If I understand the Minnesota holdings correctly, they are exactly in line with what is and has heretofore been considered to be the law in this state, and are not in harmony with the majority opinion here; and I think the
Further, the defendant was charged with selling “a malt and intoxicating liquor, to wit, malt tonic.” To charge a sale of intoxicating malt liquor and prove nonintoxicating would be, I think, a fatal variance between the pleadings and the proof. The defendant requested instructions which are set out in the original opinion, 80 Neb. 432, that the state must prove that the malt tonic was intoxicating. Each side introduced testimony concerning the intoxicating character of the liquor in controversy, so that the state concluded that the intoxicating quality of the liquor was a material allegation necessary to be proved to entitle it to a conviction. The trial court therefore erred in refusing to give instructions 1 and 2 requested by the defendant. Perhaps inferentially the jury might conclude from the ninth instruction .given by the court that “malt liquor” referred to intoxicating liquor, but it did not supply the instructions asked by defendant.
Under the charge, it was error to refuse these instructions, and the original judgment should be adhered to.