Pressly v. State
114 Tenn. 534
Tenn.
1904
Check Treatment
Mr. Justice Neil

delivered tbe opinion of tbe Court.

Tbe plaintiff in error was indicted and convicted in tbe circuit court of Putnam county on a charge of giving liquors to a minоr without tbe consent of bis parents. He was thereupon sentenced to pay a fine of $10 and to six months’ confinement in tbe county workhouse. From this judgment be has appealed and assigned errors. Tbe statute under which be was indicted is found in Shannon’s Code, section 6786, and reads as follows:

“It shall be unlawful for any person or individual, or firm or corporation, whether engaged or not in tbe manufacture or sale of any spirituous liquors, malt, or mixed liquors, their employeеs, agents, or servants, or *536other persons for them, knowingly to sell, give, furnish to, or procure for, any person under the аge of twenty-one years, any spirituous, vinous, or malt liquors, or any mixture thereof with other liquors or ingredients, without the consent of the parents, guardian, or person having the care of such person under the age of twenty-one yeаrs.”

The punishment is fixed by section ‍​‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌​‌‌‌​​‌‍6789, which reads as follows:

“Any person or persons violating the provisions of sections 6786 оr 6787 shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than ten nor more than two hundred dollars.”

Two objections are made in this court.

The first is that his honor erred in refusing to permit the defendant below to introduce the following paper in evidence, еxecuted by the mother of the minor, viz.:

“Mr. John Pressly: You can give any of my children drinks of whiskey or brandy at any time you may desire tо do so. This December 1, 1903.
her
“Angelina X Palmee. mark
“Attest: J. L. Palmee.”

The mother of the boy was a widow. The child to whom the whisky was given was only ‍​‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌​‌‌‌​​‌‍15 years old. The whisky was given tо him during the month of July, 1904.

There was no error in the action of the trial judge in rejecting this paper. It was the specific purpose of the *537statute to restrain the giving, selling, or furnishing intoxicating beverages to minors, or procuring such beveragеs for them. An exception was permitted in case of the consent of “the parents, guardian or person hаving the care of such” minor. It was supposed that parents and guardians, and other persons having charge of minоrs would have concern for and exercise care over the children committed to them in the course оf nature or by operation of law, and that they would use discretion in giving or withholding consent in every instance of a рroposed gift or sale to such child or children. To admit the validity of such a general consent as the paper above set out purports to give would not only violate the spirit of the act, but would wholly frustrate the purpose whoch the legislature had in view; since a general consent of this character would be tantamount to a withdrawal of the child or children referred to in such paper from the protection of the act; at least, in favor of the person or persons to whom such writing might be addressed. If such consent should be held good, no sound reason could be offered against the validity of a writing addressed “to whom it may concern,” conferring upon all pеrsons who might choose to take advantage of it, the right to give intoxicating liquors to the children of any parent or guardian sufficiently heedless, or reckless, or wicked to consent to the debauching of. the youth under their charge. The legislature did not intend to sanction such a course of conduct. Indeed, we believe that the legislature must have intended that a parent, or guardian, *538or other person having the care of a minor could give consеnt that another might give, sell to, furnish to, or procure liquors for, such minor only in cases of emergency; as, for instancе, for medical purposes. It was never intended that a general permission should be given to enable minors to usе intoxicating liquors as a beverage ; on the contrary, authority to sell to, give to, furnish to, or procure liquors for them, is limited to such occasions and emergencies.

The second objection raised against the judgment of the сourt below is that his ‍​‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌​‌‌‌​​‌‍honor added imprisonment to the fine, and that he had no legal right to do so.

We are of the opinion that this objection is well taken, and must be sustained.

The rule at common law is thus stated by Mr. Bishop:

“The ordinary common-law punishment for misdemeanors is fine and imprisonment, or either, at the discretion of the court. It is imposed whenever the law has not provided some other sрecific penalty. For example, when a statute forbids or commands an act of a public nature, but is silent as to the punishment, the common law provides fine and imprisonment.” Bishop’s New Criminal Law, vol. 1, sec. 940.

The foregoing rule is rеcognized in several of our own cases (Atchison v. The State, 13 Lea, 275; Wickham v. The State, 7 Cold., 525; Durham v. The State, 89 Tenn., 723, 18 S. W., 74; Kittrell v. The State, 104 Tenn., 522, 58 S. W., 120; Thompson v. The State, 105 Tenn., 177, 58 S. W., 213, 51 L. R. A., 883, 80 Am. St. Rep., 875); the *539fine being assessed by tbe court if. $50 or under, and by tbe jury if over $50 (Shannon’s Code, sеc. 7212); and tbe imprisonment to be fixed by tbe court (Shannon’s Code, sec. 7202). The Code further ‍​‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌​‌‌‌​​‌‍provides that when tbe perfоrmance of any act is prohibited by statute, and no penalty for tbe violation of such statute is imposed, tbe doing of such act is a misdemeanor. Shannon’s Code, sec. 6437.

See, also, Robinson & Walker v. State, 2 Cold., 181; State v. Keeton, 9 Baxt., 559.

It has been held, however, that where tbe statute which crеates an offense does not make it indictable, but prescribes a penalty, the specific remedy given, thе penalty, excludes the resort to an indictment. State v. Maze, 6 Hump., 17; State v. Lorry, 7 Baxt., 95, 32 Am. Rep., 555; State v. Manz, 6 Cold., 557. It would seem to be true, also, that where the statute creatеs an offense, and prescribes a special form of punishment, this would exclude any other different or additional punishment.

Such is the present case. The statute does not impose imprisonment, but declares that the punishment shall be a fine of not less than $10 nor more than $200.

We are of opinion, therefore, that his honor erred in imposing the imрrisonment. This court, however, ‍​‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌​‌‌‌​​‌‍has power to modify the judgment by striking out the imprisonment and then affirming it as modified. Griffin v. State, 109 Tenn., 17, 70 S. W., 61. This course will be pursued, and the judgment will be remanded to be executed as modified.