80 So. 221 | La. | 1918
The defendant, appellant, was prosecuted under a bill of information charging that he had retailed intoxicating liquors in the parish of Caddo without having obtained a license therefor from the police jury of the parish, or from th'e municipal authorities of any town or city in the parish. On conviction he was sentenced to pay a fine of $500 and costs, and to serve a term of 12 months in jail, and, in default of payment of the fine, to serve an additional term of 12 months in jail, subject to work on the public works of the parish.
Before sentence, he moved for a new trial on the ground that the conviction was contrary to the law and the evidence, because the district attorney had failed to introduce in evidence an ordinance of the police jury prohibiting the selling of intoxicating liquors in the parish of Caddo. To the overruling of the motion for a new trial, the defendant reserved a bill of exceptions, which presents for decision the question whether, in a prosecution for the offense of retailing intoxicating liquor without having obtained a license therefor from the parish or municipal authorities, it is necessary for the state to prove that the selling of intoxicating liquors was prohibited in the parish in which the offense is alleged to have been committed. That question has been propounded in every con
The defendant was not accused of having violated a parish ordinance, or prohibition law. He was accused of having retailed intoxicating liquor without having obtained a license therefor from the police jury of the parish in which the offense was alleged to have been committed, or from the municipal authorities of any town or city in the parish. Therefore, if the retailing of intoxicating liquors without having the required local license violated a statute of the state, the guilt or innocence of the party accused did not depend upon the question whether the selling of intoxicating liquor was prohibited or licensed in the parish in which the offense was alleged to have been committed.
Section 910 of the Revised Statutes of 1870, as amended and re-enacted by the Act No. 83 of 1886, p. 122, declared that whoever should be convicted of keeping a grogshop or tippling shop, or of retailing spirituous or intoxicating liquors, without having obtained a license from the police jury, town or city authorities, should be fined not less than $100, nor more than $500, and, in default of payment of the fine, be imprisoned not less than 30 days, nor more than 4 months. It made no difference then whether the retailing of intoxicating liquors was done in a prohibition parish or in a parish where a license could be obtained.
By the Act No. 107 of the same session,
It is to be observed that the Legislature did not attempt to grade the offense of retailing intoxicating liquors without a license, in a parish or municipality where the selling of intoxicating liquors was prohibited, and where, therefore, no parish license or municipal license could be obtained, because the offense, if committed in prohibition territory, was not susceptible of being graded as it was graded in a locality where a license could be obtained. The consequence was that the law against selling intoxicating liquor without a license, in prohibition parishes and municipalities, remained the same as it had been enacted in the Act No. 66 of 1902, and section 8 of the Act No. 107 of that year, grading the offense, had application only to parishes and municipalities in which a license could be obtained.
In 1908 the Legislature enacted a very comprehensive statute (Act No. 176 of 1908, p. 236, known as the Gay-Shattuck Law), regulating the business of retailing intoxicating liquors throughout those parts of the state where the selling of intoxicating liquors was not prohibited by any local law or ordinance. It was expressly declared, in section 14 of the act, that the statute should apply only to the parishes, cities, towns, and villages where the selling of intoxicating liquors was not prohibited. Hence the Act No. 66 of 1902, so far as it had not been altered or affected by section 8 of the Act No. 107 of 1902 — that is, in its application to parishes and municipalities in which the selling of intoxicating liquors was prohibited — ■ was not repealed or affected by the Act No. 176 of 1908. But section 8 of the Act No. 107 of 1902, grading the offense of retailing intoxicating liquors without a license, according to whether the minimum local license tax imposed did or did not exceed $300, was completely repealed by section 2 of the Act No. 176 of 1908, by making it the duty of police juries and municipal councils and boards of aldermen to levy and collect a retail liquor license tax not less than $500 per annum. And, in lieu of the statute that was thus repealed, section ■ 3 of the Act No. 176 of 1908 declared that any person convicted of selling intoxicating liquors or of conducting a barroom or other place where intoxicating liquors were sold in quantities less than five gallons, without taking out a license for such business, should be deemed guilty of a misdemeanor and be punished by a fine not less than $100 nor more than $500, or by imprisonment in the parish jail for a term not exceeding 2 years, or by both the fine and imprisonment.
In prohibition territory, in all of which territory alone the Act No. 66 of 1902 remains in full force and effect, the offense denounced by the statute is the keeping of a grogshop or tippling shop, or the retailing of spirituous or intoxicating liquors without previously obtaining a license from the police jury of the parish or from the. municipal authorities of a town or city therein. In territory where the selling of intoxicating liquors is not pro
The judgment and sentence appealed from are affirmed.