State v. Kibling

| Vt. | Feb 15, 1891

The opinion of the court was delivered by

ROSS, Ch J.

1. The counsel for the respondent contends that there was error in admitting testimony tending to show any offences committed prior to Nov. 26, 1890, when the Legislature re-enacted the law regulating the manufacture and sale of intoxicating liquors, and in convicting the respondent for any offences committed prior to that date. He bases this contention upon the claim that under the decision of Leisey et al. v. Hardin, 135 U.S. 100" court="SCOTUS" date_filed="1890-04-28" href="https://app.midpage.ai/document/leisy-v-hardin-92767?utm_source=webapp" opinion_id="92767">135 U. S. 100, the statutes of the State relating to this subject were unconstitutional and void. He does not contend that there was any evidence in the case tending to show that any of the liquor sold by the respondent, for which convictions were had, came from without the State to the respondent, or was still in, and sold by him, in the original packages, if it did come to him from without the State, so that it was within the interstate commerce provision of the Constitution of the United States. But he contends that the statute of the State prohibiting the sale of intoxicating liquors is indivisible; that there are no separate or distinct sections or clauses, independent of each other, so that one part can be sustained and the other excluded, but all of its provisions are connected in subject matter, depending on each other and operating together for the same purpose; that the framers of the law had but one object in view, that of suppressing the liquor traffic • that they have placed all liquors whether brought into the State in original packages or not on one common ground. It must be conceded that this contention is true so far as this law relates to liquors which would fall within the interstate commerce provision of the Constitution of the United States. Until tbe announcement of the decision in Leisey et al. v. Hardin, it had been quite generally supposed that that clause of the Federal Constitution did not prohibit the exercise of police powers by a state. But under this decision, before the passage of the' Wilson bill, so-called, by Congress, the statutes of the state oh this subject were unconstitutional, when applied to sales of intoxicating liquors within the scope of that decision. They were also constitutional in all other respects, and when applied to all other sales of intoxicating liquors made in violation of its provisions in this state. The evidence brought all the offences by the respondent within the constitutional operation of the law. The case, on its facts, does not involve the question of unconstitutionality, within the decision of Leisey et al. v. Hardin. The law, untouched by that decision, applies without doubt or difficulty, to every offence found against the respondent. When such is the case the law is not wholly unconstitutional, but only so when the facts of the case bring it within the operation of the Federal Constitutional inhibition. There is no objection to its enforcement- whenever in its application it is constitutional. The authorities cited by the respondent’s counsel ■ clearly mark this distinction. In Bank of Hamilton v. Dudley, 2 Pet. 492" court="SCOTUS" date_filed="1829-02-25" href="https://app.midpage.ai/document/bank-of-hamilton-v-lessee-of-dudley-85645?utm_source=webapp" opinion_id="85645">2 Pet. 492, Marshall, Ch. J., says : “ If any part of the act be unconstitutional, the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the constitution.” Says Miller, J., in Eilenbecker v. District Court of Plymouth, Iowa, 134 U.S. 31" court="SCOTUS" date_filed="1890-03-03" href="https://app.midpage.ai/document/eilenbecker-v-district-court-of-plymouth-county-92704?utm_source=webapp" opinion_id="92704">134 U. S. 31 (33 L. C. 801) “Itis the well settled doctrine of this court that a part of a statute may be void, and the remainder may be valid.”

Hardin, J., in Garrard Co. Ct. v. Navigation Co., 10 Am. L. Reg. 160, expresses the same idea in this language:

“ But while it is a rule of law that if a statute attempts to accomplish two or more objects, and is void as to one, it may still be valid as to the others ; yet if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion.” Under Leisey et al. v. Hardin, the statute, in terms, covered sales that might fall within the inhibition of the interstate commerce clause of the Constitution of the United States. It also covered a much larger class of offences, to which this inhibition did not apply. It could be fully operative to this latter class of offences; and it was so framed that its provisions were applicable. On the underlying principle of the decisions cited, it was not void when invoked against this class of offences. Hence this contention cannot be sustained. The facts of the case do not involve the consideration of the constitutionality of this law, when in conflict with the interstate commerce provision of the constitution of the United Strtes, and it is so framed as to be applicable and operative against the class of offences charged and proved against the respondent.

State v. Wade, heard at the last general term, involved the same question, and the decision therein covers the point here decided. Bowman v. Railway Co., 125 U.S. 465" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/bowman-v-chicago--northwestern-railway-co-92203?utm_source=webapp" opinion_id="92203">125 U. S. 465; Mugler v. Kansas, 123 U.S. 623" court="SCOTUS" date_filed="1887-12-05" href="https://app.midpage.ai/document/mugler-v-kansas-92076?utm_source=webapp" opinion_id="92076">123 U. S. 623; Bartemeyer v. Iowa, 18 Wall. 129" court="SCOTUS" date_filed="1874-03-18" href="https://app.midpage.ai/document/bartemeyer-v-iowa-88800?utm_source=webapp" opinion_id="88800">18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 33 ; Foster v. Kansas, 112 U.S. 201" court="SCOTUS" date_filed="1884-11-10" href="https://app.midpage.ai/document/foster-v-kansas-ex-rel-johnston-91195?utm_source=webapp" opinion_id="91195">112 U. S. 201.

2. The re-enactment of this law by the Legislature at- its session in 1890 was a precaiitionary measure, rendered necessary, if necessary at all, by the decision in Leisey et al. v. Hardin, and was passed to make it sure that it was applicable and operative, under the Wilson bill, to that class of offences in regard to which that decision might render it void. It did not change or modify any of the provisions of the law. It simply declared that the law was re-enacted and to remain in force, as to the offences found against the respondent the same as it was before. There, was nothing in the act re-enacting it, repugnant to or inconsistent with the provisions of the law as they had theretofore existed, nor was anything thereby validated, so far as it related to. the offences found against the respondent, which was invalid before. It neither added to nor took away anything from the existing law so far as applicable to this case, but declared the law to exist as it had existed. As said in Kelsey v. Kendall, 48 Vt. 24" court="Vt." date_filed="1875-08-15" href="https://app.midpage.ai/document/kelsey-v-kendall-6580233?utm_source=webapp" opinion_id="6580233">48 Vt. 24, “ The portion of an amended statute which is merely copied without change, is not to be considered as repealed and again enacted, but to have been the law.” The holding on these two points disposes also of the respondent’s exceptions relating to his second request to charge.

3. There was no reversible error in allowing Gouillette to describe the barrels which he delivered to the respondent, at his place of business where the claimed sales were made. If the answer described them as whiskey or lager beer barrels, it would render the commission of the claimed offences more probable, because it would tend to show he had the means at hand with which to commit them. If it showed them to be of a different character, it would either tend to show that the respondent was not guilty of the charges, or be immaterial. The respondent could have suffered no harm from the answer, if it did not tend .to establish the charges against him. -

4. The respondent’s first request was not sound law, and no error arose from a refusal to comply with it. It assumes that a conviction could not be legally had on the uncorroborated testimony of Clifford. Such is not the law of this State, though Clifford were the accomplice of the respondent. State v. Potter, 42 Vt. 495" court="Vt." date_filed="1869-11-15" href="https://app.midpage.ai/document/state-v-potter-6578970?utm_source=webapp" opinion_id="6578970">42 Vt. 495; State v. Dana, 59 Vt. 614" court="Vt." date_filed="1887-05-15" href="https://app.midpage.ai/document/state-v-dana-6582989?utm_source=webapp" opinion_id="6582989">59 Vt. 614. Whether the court should advise the jury not to convict on the uncorroborated testimony of an accomplice, is a question of practice, proper to be complied with, but not a question of law, from which error arises. Clifford was sharply corroborated. The charge in reference to this witness’s relation to the respondent, and the offences with which he was charged, correctly stated the law bearing upon such relations, and told the jury to weigh his testimony, taking into consideration all the circumstances connecting him with the respondent. This charge withdrew no evidence nor circumstance from the consideration of the jury, but called their minds specifically to all the circumstances bearing upon his testimony. They were told that they alone were the judges of the weight to be given his testimony. There was no error in the charge on this subject.

5. We discover no error in the charge upon the subject» whether the liquid sold by the respondent under the name of “ pop beer ” or “ home made beer ” was lager beer. The jury were told that they were not to be' governed by the name by which it was called, but by what it was in fact; and that to convict, they were to find it established beyond a reasonable doubt to have been lager beer that he sold.

6. The respondent’s motion, in arrest of judgment and sentence, cannot be sustained. It appears to have been filed after judgment on the verdict was entered. But if seasonably filed, it was addressed only to facts which appeared upon the record. The information and specifications, taken together, confined the State in its proof to offences committed in his restaurant and dwelling, in Norwich, within two years prior to Dec. 23, 1890. All the proof was confined to offences committed in these premises. The respondent did not move there until October, 1889. Although the court, in the discussion which arose in regard to some of the interrogatories propounded to witnesses, intimated that the State could introduce proof of offences committed during three years prior to filing the information, the State’s attorney only asked to be allowed to introduce proof going back to Jan. 1, 1889, and the court charged the jury that they were confined within that time. Hence, if the motion .in arrest could reach the question argued, neither the proof nor charge of the court allowed the jury to convict for any offences committed prior to the time when Act No. 42 of 1888 took effect. Hence that act had no relevancy to the verdict which the jury legally could render in the case. There was no occasion for the court to call upon the jury to declare, by their verdict, what offences were committed before and what after that act became operative. To have done so would have implied that there was evidence in the case from which the jury might legally find that the respondent committed offences prior to the time when that act took effect. Of a charge carrying such an implication, the respondent might well have complained. That act so far as it requires a special verdict from the jury, is by its scope applicable only to cases where the evidence has a legal tendency to show offences committed both' before and after the act took effect. There is no view in which the motion in arrest can be sustained. The respondent has not relied upon any of his other exceptions.

Judgment that the respondent takes nothing by his exceptions.