McLaughlin v. State, No. 20920

No. 20920 | Neb. | Apr 17, 1920

Morrissey, C. J.

Defendant prosecutes error from a conviction had under chapter 187, Laws 1917, for transporting intoxicating h'quors. The complaint charged that defendant “did bring and transport intoxicating liquors into the state of Nebraska and into Johnson county, city of Tecumseh of said state of Nebraska, contrary to and in violation of the prohibitory law of the state of Nebraska, prohibiting the manufacture, keep, sale and transportation of liquor in the state of Nebraska.” Defendant demurred to the complaint, alleging that it did not state facts sufficient to constitute a crime or to give the court jurisdicdiction. The demurrer was overruled.

A jury was waived, and trial proceeded on the following stipulation of facts:

“It is hereby stipulated and agreed by and between the parties hereto, and in open court, that on the 26th day of March, 1918, defendant was a bona fide resident of Johnson county, Nebraska, and had been such resident for more than twenty years last past; that on said day said defendant returned to said county, and to the city of Tecumseh therein, from St. Joseph, Missouri, and brought with him some intoxicating liquors, to wit, whisky, which he carried on his person, or in a hand bag or satchel in his hands; that said intoxicating liquors were seized by the complaining witness, with defendant’s consent, and taken from defendant’s hand, after he had arrived at the city of Tecumseh, aforesaid; but said liquor was so carried and brought by said defendant from St. Joseph, Missouri, to Tecumseh, Nebraska, for his own use, and for his medicinal use, and not to sell or give away or otherwise dispose of to any other person whatever. Said defendant had been accustomed for many years last past to use intoxicating liquors, as he claims, for the benefit of his health, and he brought the said liquor in controversy into said city of Tecumseh on his way to his home in said county, for that purpose and no other; said city of Tecumseh being on his way to his home.”

Defendant was found guilty, and the court imposed the minimum fine of $100 and costs.

It is claimed that the demurrer ought to have been sustained because the complaint charged merely that defendant “did bring and transport intoxicating liquors into the state of Nebraska and into Johnson'county, city of Tecumseh of said state of Nebraska,” without alleging that the liquors were brought or transported from, any place outside of Nebraska, and without alleging the quantity of liquor transported, or that it was transported for an illegal purpose, and not for medicinal, mechanical, scientific, or sacramental purposes. In • support of this contention, counsel for defendant cites sections 2 and 3 of the chapter under which the prosecution was brought. By section 2 the transportation of intoxicating liquors'is expressly prohibited, and there is no requirement that the transportation of the inhibited article shall be from a place without the state to a place within the state. Giving the word “transport” its usual and ordinary meaning, as its place in the context seems to require, it means to carry or convey from one place or station to another, and in this respect the complaint is sufficiently definite.

The statute makes certain exceptions in the case of liquors used for medicinal, mechanical, scientific, and sacramental purposes; but it also provides that these exceptions are for the benefit only of “persons specially authorized in the manner and to the extent only as hereinafter provided.” Certain definite and specific exceptions are provided, not only in section 2, but in other sections of the chapter, which, when complied with, suspend the operation of the prohibitions contained in section 2. It is true that the complaint does not negative these exceptions; 'but this court has already held that in prosecutions under this statute it is not necessary to do so — defendant must avail himself thereof as a matter of defense. Fitch v. State, 102 Neb. 361" court="Neb." date_filed="1918-04-12" href="https://app.midpage.ai/document/fitch-v-state-6663026?utm_source=webapp" opinion_id="6663026">102 Neb. 361.

Nor is the complaint defective because of its failure to allege the quantity of liquor. Laws 1917, ch. 187, sec. 44. It follows that the demurrer was properly overruled.

It is argued that under section 11 of the act under consideration a person may lawfully keep liquors in his private dwelling-house in such quantity as is reasonably. sufficient for his personal use, and it is claimed that the right to keep such liquors necessarily implies some adequate method of obtaining them. This argument carried to its logical conclusion would destroy the whole purpose of the legislation. If, because the statute permits the possession of a reasonable quantity of intoxicants in the home, we must hold that this gives a right to convey liquors to the home, we might then he called upon to go a step farther and hold that the manufacture of intoxicating liquor was permissible, because without a supply there could he no transportation. This we cannot do.

. The record is free from error, and the judgment is

Affirmed.

Letton and,Day, JJ., not sitting.