67 So. 206 | La. | 1915
Statement of the Case.
Defendant was convicted upon' the, charge that he “unlawfully did keep a ‘blind tiger,’ by keeping intoxicating
From which conviction and sentence he has appealed, and presents his case to this court upon a single bill of exceptions, reading (so far as it need be quoted) as follows:
“Be it remembered that prior to the pleading herein (the defendant afterwards refused to plead, and a plea of not guilty was entered) the defendant demurred, and moved to quash the information herein filed; defendant setting up that the information disclosed no crime or misdemeanor known to the laws of Louisiana, especially attacking the constitutionality of Act No. 146 of 1914, as being violative of the state and federal Constitutions. And further demurred and said that the information disclosed no crime, because it was not charged that the intoxicating liquors were so kept ‘in connection with any business conducted at said place’; that defendant demanded to be informed what business was being operated in connection with the keeping of said intoxicating liquors, which information was not set up in said charge, nor furnished the defendant. Which said demurrers were overruled, and to which overruling defendant excepted and reserved the bill,” etc.
The judge a quo, citing City of Shreveport v. Maroun, 134 La. 490, 64 South. 388, and other cases decided by this court prior to the passage of Act No. 146 of 1914. held, in effect, that a “blind tiger” is a device by which a liquor dealer seeks to pdy his vocation, and, at the same time, to conceal his criminal agency in the selling; that they are public nuisances per se, and may be abated; and that the act of 1914 should be construed to mean that the offense of keeping a blind tiger, thereby defined and denounced, may be completed by the sale, barter, exchange, or giving away as a beverage, in prohibition territory, of intoxicating liquors, whether in connection with other business or apart therefrom.
Opinion.
“An act to define and prohibit the keeping of a ‘blind tiger’; to provide for the search^ of the same and for the seizure and destruction of any spirituous, malt or intoxicating liquor found- therein; to provide for the punishment of any violations of this act.
“Section 1. * * * That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt or intoxicant liquors is prohibited, where such spirituous, malt or intoxicant liquors are kept for sale, barter, exchange or habitual giving away as a beverage in connection with any business conducted at such place.
“See. 2. * * * That the keeping of a ‘blind tiger-’ is hereby prohibited, and whoever shall be guilty of violating this act #nall be guilty of a misdemeanor.
“Sec. 3. Provides that any place suspected of being a ‘blind tiger’ shall be searched, by an officer designated in a search warrant, and that any prohibited liquor found by such officer shall be seized and brought into court; that any court, having the power of a committing magistrate, may issue the warrant, upon an affidavit to the effect that the affiant believes a designated place to be a ‘blind tiger,’ together with such other evidence as the court may require in order to make out a prima facie case; that the officer shall make his return within 24 hours and shall bring into court all of the prohibited liquors, and all the persons that he may find on the premises, and that the court shall proceed, ‘without delay,’ to examine the facts, as a committing magistrate.
“Sec. 4. * * * That whoever shall be found guilty of keeping a ‘blind tiger,’ in violation of this act, shall be fined not less than $200 nor more than $500 and be imprisoned for not less than 30 days nor more than 6 months and on default of the payment of the fine and costs he shall be imprisoned for not more than 6 months additional.
“Sec. 5. * * * That all laws and parts of laws in conflict herewith be and the same are hereby repealed.”
It appears, therefore, that although there were already upon the books statutes (Act Nos. 107 of 1902 and 176 of 1908) penalizing the retailing, without a license,’ of intoxicating liquors, or the keeping of a barroom, cabaret, etc., in communities where licenses may be issued, and other statutes (R. S. 910 and 1215, and amendments to section 910) penalizing such sales, or the keeping of a grog or tippling shop, in communities where licenses therefor are not permitted, and still another statute defining the term “grog or tippling shop,” as applied to such establish
“Section 1. * * * That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt or intoxicant liquors is prohibited, where such * * * liquors are kept for sale, barter, exchange or * * * giving away as a beverage in connection with any business conducted at such place.
“Sec. 2. * * * That the keeping of a ‘blind tiger’ is hereby prohibited, and whoever shall be guilty of violating this act shall be guilty of a misdemeanor.”
Then follow provisions authorizing the issuance of search warrants, the seizure of goods, the arrest of persons, the mandatory requirement that the court shall proceed “without delay” to examine the facts as a committing magistrate, and the penalty, the minimum being a fine of $200. .Construing the statute thus enacted with those which had already been enacted and construed, and considering that it applies exclusively to prohibition territory, and that the existing laws applicable in such territory already covered sales of liquor, whether made in one place or another, the keeping of grog or tippling shops, as such, and without reference to .their connection with any other business conducted at the same place, and the keeping of “blind tigers” (interpreted by this court to mean places, whether in prohibition • or nonprohibition territory where intoxicating liquors are sold, on the sly, contrary to law), and further considering the unusual and drastic provisions for the enforcement of the statute in question, and the fact that the minimum penalty which may be imposed thereunder is double that which may be imposed under any other statute relating to the sale of intoxicating liquors, and our conclusion is that the purpose of the act was to define and denounce, as a distinct offense, the keeping of a “place” in prohibition territory “where spirituous, malt or intoxicant liquors are kept for sale, barter, exchange or habitual giving away,” not as in a place devoted to such business as a grog or tippling shop, but “in connection with any [other] business conducted at such place”; and we therefore further conclude that the keeping of the “place” in a subdivision of the state where the sale of such liquor is prohibited (or not permitted), and the keeping of the liquors at such place, in connection with some other business, conducted at- such place, are essential ingredients of the offense so denounced; and hence that they should have been set out in the bill of information.
“An indictment under a statute ought with certainty and precision to charge the defendant to have committed or omitted acts under the circumstances, and with the intent mentioned in the statute; and if any one of these ingredients be omitted the indictment is not good.” State v. Stiles, 5 La. Ann. 326; State v. Hood, 6 La. Ann. 179; State v. Read, 6 La. Ann. 227.
“The general rule is (and this, whether the indictment be under the common law, or for an offense created by statute) that the special manner of the whole fact ought to be set forth, with such certainty and so specifically that it may judicially appear to the court that the indietors have gone on sufficient premises, to enable the court to know what judgment is to be pronounced on conviction; that the defendant may clearly understand the charge he is called upon to answer; and that posterity may know what law is to be derived from the record.” State v. McClanahan, 9 La. Ann. 211.
See, also, State v. Durbin, 20 La. Ann. 408; State v. Breaux, 122 La. 521, 47 South. 876; State v. Noel, 125 La. 309, 51 South. 215.
“In an indictment upon a statute, it is necessary that the defendant should be brought within all the material words of the statute, and*443 nothing can be taken by intendment.” Wharton’s Crim. Law, 133; 1 Chit. Crim. Law, 2S3.
“The offense should be charged either in the language of the statute or in language of equivalent import; and a verdict not responsive to the charge will not authorize a judgment.” State v. Pratt, 10 La. Ann. 191; State v. Ca-son, 20 La. Ann. 49.
The foregoing is but little more than an elaboration of the views expressed in the ease of State v. Prankie Mackie (2Ó941) 67 South. 25,
It is therefore ordered that the conviction and sentence appealed from be set aside, the demurrer and the motions to quash sustained, and the defendant discharged.
Ante, p. 341.