84 Neb. 335 | Neb. | 1909
This is a proceeding in error from the district court for Lancaster county. An information containing three counts was filed in that court, charging plaintiff in error with keeping for sale certain intoxicating liquors in violation of section 20 and following, ch. 50, Comp. St. 1907. The first count charged plaintiff in error with unlawfully keeping for sale certain malt and intoxicating liquors known as beer; the second count with keeping spirituous liquors for the unlawful purpose; and the third count with keeping for the same purpose certain vinous liquors. The proceeding was instituted in the police court of the city of Lincoln, and upon search a quantity of liquors of the value of about $2,000 was seized. Upon a hearing-in that court the finding was that probable cause exixsted, and the plaintiff in error was held to appear before the district court. A trial was had in that court, which resulted in a verdict finding plaintiff in error not guilty of the charges contained in the first and third counts, and guilty of the charges contained in the second count. The verdict was in the following form, omitting the title of the case: “We, the jury, duly impaneled and sworn in the above entitled cause, do find the defendant not guilty as he stands charged on the first and third counts, and guilty as he stands charged in the second count, except as to the bulk liquors.” A motion for a new trial was filed, which, upon being overruled, judgment was rendered upon the verdict imposing a fine of $300, It
Two questions are presented for decision. It is contended by plaintiff in error, first, “that the evidence is not sufficient to sustain a conviction”; and, second, “that the verdict is too indefinite and uncertain.to sustain the judgment of the court, and that the verdict is void for uncertainty.”
Consulting our OAvn convenience, we will investigate the second contention first. It is contended that the language of the verdict, “except as to the bulk liquors,” is too indefinite and uncertain to warrant the entry of a judgment thereon; that there is nothing in the verdict Avliich designates what liquors are intended by the word “bulk”; that the quantity contained in each receptacle furnishes no guide; and that the ruling or order of the district court selecting those of the smallest quantity was simply substituting the opinion of the judge for that of the jury, and that the laAv does not clothe the court with poAver or authority to “guess” at what the jury meant, they' having furnished no basis for the “guess” or the judgment of the court. There can be no doubt that the. verdict is someAvhat indefinite as to the quantity of liquors unlawfully held by defendant, and one is led to wonder why it was received in that form. However, it is before us and the question presented asks for solution.
The sections of the statute under which the prosecution in this case was instituted contain a dual penalty. It is provided by section 20 that “it shall be unlaAvful for any person to keep for the purpose of sale Avifhout license
It is claimed that the exception in the verdict is so indefinite that the court could not lawfully order any of the liquor destroyed or fine defendant for the possession thereof. The court, however, assumed that the words of exclusion applied to all of the liquor seized other than that contained in the half pint bottles and those labeled “Don’t Care.” Said bottles included the smallest containers seized by the officer under the writ, and thereby gave defendant the benefit of every doubt that might be conjured from the language employed. “ ‘Bulk’ is said to be that which is neither counted, weighed, nor measured.” 1 Words and Phrases, p. 903. In our judgment the court should have ordered all of the intoxicating liquors contained in the sealed bottles destroyed, and that only the liquor in the larger receptacles was exempt under the verdict of the jury. The error, however, was without prejudice to defendant. But what effect could this error of the court have upon the judgment imposing the fine? We cannot see that it would have any, since section 20, as above quoted, makes the keeping of “any” liquors for unlawful sale an independent substantive offense, declaring it to be “a misdemeanor” with fine or imprisonment as the punishment. We therefore hold that the verdict of guilty furnished a sufficient basis for the imposition of the fine if upon examination the evidence is found sufficient to sustain such verdict.
The testimony shows that a large quantity of prohibited liquors were found in plaintiff in error’s place of business. Some of said liquors were in barrels, some in half barrels, and a great quantity in smaller vessels down to the 141 half pint bottles hereinbefore referred to. Considerable of evidence was introduced upon the defense for the purpose of showing that the business of plaintiff in error was that of a manufacturing pharmacist and druggist, and that the said liquors were kept in stock for use in manufacturing medicines, elixirs, extracts, etc.,
It is further contended that the conviction cannot stand for the reason that the proof showed that the liquors were the property of the Riggs Pharmacy Company, and not of plaintiff in error. The evidence was conclusive that plaintiff in error was the owner of a majority of the stock of the company; that he was its president and general manager, had charge of its business, made contracts and purchases, and was the sole responsible person in charge and possession of the liquors as Avell as the general business of the house. His Avife and her sister were with him the owners of all the common stock Avhich controlled the business, all of .which Avas under his constant care and supervision. This could not exonerate him.
It folloAvs that the judgment of the district court should be, and hereby is,
Affirmed.