Luther v. State

Reese, C. J.

This case was decided at tbe September term, 1907, of this court, and the opinion is reported in 80 Neb. 432. The attorney general filed a motion for rehearing, which was sustained, and the case has been submitted to the court upon carefully prepared briefs and able oral arguments by counsel. The contention of the attorney general is: First, that the proof upon the trial was conclusive that the liquor sold and kept for sale was “malt liquors,” and therefore the selling and keeping for sale of the liquors described was a violation of law, and the conviction should be sustained without any inquiry as to the intoxicating or nonintoxicating properties of the liquor; second, that, should the court hold otherwise, the question of the intoxicating quality of the liquor kept for sale and sold was sufficiently submitted to the jury, and that in that event the judgment should be affirmed. It is contended by .plaintiff in error: “First, it is not a violation of our liquor law to sell a malt extract, unless the same is shown to be of such an intoxicating character that it -may be used as a beverage, and that when used in practicable *457 quantities it will produce intoxication; second, that the court will not take judicial notice that malt extract is an intoxicating liquor, but that this question is one of fact to be submitted to the jury; third, that the instructions requested by the defendant should have been given, and that the court erred in omitting from the instructions given the element of the intoxicating character of malt extract as one o.f the material issues to be tried.”

It is charged in the first count of the information that plaintiff in error unlawfully kept for the purpose of sale “certain malt and intoxicating liquor, to wit, malt tonic,” with intent to sell the same; and in the second count that he unlawfully sold to a person named “certain malt and intoxicating liquor, to wit, malt tonic”; and in the third count that he sold of said liquor to another person; and in the fourth count that he sold the same to a person named; and in the fifth count that he sold the same to yet another person named. The jury returned a verdict finding plaintiff in error guilty on all the counts of the information. The court imposed a fine of $ 100 upon each count.

It was shown upon the trial that upon the filing of the complaint before the magistrate a search warrant was issued, and the sheriff in making a search of the premises of plaintiff in error found “four full barrels and about a half barrel” of the liquor. There was ample proof that the liquor was kept for sale and sold to be drunk as a beverage, and that a considerable quantity of it had been sold and consumed. The liquor was in bottles, each bottle bearing an illuminated label as follows, omitting names and locality of the brewing company: “-Brewing Company’s NON INTOX. A nonintoxicating malt tonic. Guaranteed to contain less than 2$ of alcohol. Brewed and bottled by the- Brewing Co., -, Illinois. Western Branch, -, Mo.” The state chemist was called as a witness on the part of the state, and testified that samples of the liquor had been sent to and analyzed by him, and that the liquor was malt liquor; that all liquors that were brewed from malt were necessarily malt *458 liquors; and that the liquor contained in the bottles is classed “in the class of beers”; that the quantity of alcohol contained in the liquor was one and one-tenth per cent.; that the quantity of alcohol usually contained in the lager beer of commerce is on average “around 3 per cent.” There is no controversy as to the possession and sale of the liquors by plaintiff in error, nor that they were sold and to be sold to be drunk as a beverage. Tk^ only contentions are as outlined above. There was no effort to contradict the testimony of the state chemist to the effect that the liquor was a malt liquor, that it contained the percentage of alcohol named, and that it is classed as and among “the class of beers.”

It is contended by the state that under our statutes it was not essential that the prosecution should go farther with its proof; that if the liquor was a “malt liquor” and belonged to the class known as beer, the statute having prohibited the sale of “malt liquor,” and this court having so often decided that the courts will take judicial notice that beer is an intoxicant, the verdict was right and should be sustained. Chapter 50, Comp. St. 1907, commonly known as the “Slocumb Law,” provides in the first section that licenses may be issued for the sale of “malt, spirituous and vinous liquors.” In section 6 the issuance of a license to sell “malt, spirituous and vinous liquors” is prohibited, unless the applicant gives the bond required by the section. Section 10 prohibits any licensed person from selling intoxicating liquors to the classes of persons named therein. Section 11 provides that “all persons who shall sell, or give away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks,” without having first complied with the provisions of .the act, and obtained a license, shall be deemed guilty of a misdemeanor and punished as prescribed in the section. Section 13 makes it a crime for any licensed person to sell or give away, either by himself or another in his employ, any “malt, spirituous, or vinous liquors,” which shall be adulterated. Section 14 makes it a crime to sell or give away *459 “any malt, spirituous and vinous liquors on the day of any general or special election, or at any time during the first day of the week, commonly called Sunday.” Section 20 renders it unlawful for any person to keep for the purpose of sale without license “any malt, spirituous, or vinous liquors,” and “any person or persons who shall be found in possession of any intoxicating liquors in this state, with the intention of disposing of the same without license,” shall be deemed guilty of a misdemeanor. Section '25 confers upon the corporate authorities of cities and villages the power to license, regulate and prohibit “the selling or giving away of any intoxicating, malt, spirituous and vinous, mixed or fermented liquors within the limits of such city or village.”. Section 29 renders it “the duty of all vendors of malt, spirituous, or vinous liquors” to keep the windows and doors of their places of business unobstructed.

We have thus quoted from the different sections of the law for the purpose of seeking light upon the legislative intent in the passage of the act under consideration. It is contended by counsel for plaintiff in error that it was the legislative intent to suppress the sale of intoxicating liquors, and that, although the term “malt liquors” is used in the act, yet it was not the purpose to prevent the sale of malt liquors or liquids, unless they contained a sufficient quantity of alcohol to produce intoxication; or, stated differently, that the language used in sections 11 and 20 must be construed to mean as if it read “intoxicating malt liquor.” I cannot read the statute in that light. As well might Ave apply the adjective to the words “spirituous” and “vinous.” It is my opinion that the legislature realized and appreciated the fact that malt, spirituous and vinous liquors are equally largely used as a beverage, and are alike injurious to the consumer, if not by producing immediate intoxication when taken in small quantities, by producing the same effect when more is taken, and at the same time creating an abnormal appetite which leads to dissipation and inebriety. At any rate, the law pro *460 Mbits the sale of “malt liquors” without a license, and we must obey its plain mandate. Alcoholic beverages are 'under the ban of the law in some form or other in most civilized countries. They are known to be the cause of crime, destitution and pauperism. Malt liquors used as beverages are known to contain that destructive ingredient. It was proved upon the trial of this case that the beverage kept and sold by plaintiff in error contained it. The liquor sold by him was simply an effort to evade the law. The title of the act is “An act to regulate the license and sale of malt, spirituous, and vinous liquors,” etc. The whole act is built upon that title. Malt liquors are as much within both the letter and spirit of the law as either of the other classes named. To say that the legislature intended to provide for the regulation and license of intoxicating malt liquors would require the same word to be used as defining the other classes, and would be legislating and reading into the statute a word which the legislature clearly intended should not be there. This is not the province of the courts. We are sustained in this view by many adjudicated cases, some of which we cite, without quoting: Kerkow v. Bauer, 15 Neb. 150; Sothman v. State, 66 Neb. 302; Peterson v. State, 63 Neb. 251; State v. Teissedre, 30 Kan. 476; Stout v. State, 96 Ind. 407; Briffitt v. State, 58 Wis. 39; Commonwealth v. Timothy, 8 Gray (Mass.) 480; Commonwealth v. Anthes, 12 Gray (Mass.) 29; Eaves v. State, 113 Ga. 749; State v. Gill, 89 Minn. 502; Commonwealth v. Dean, 14 Gray (Mass.) 99; State v. Jenkins, 64 N. H. 375; Hatfield v. Commonwealth, 120 Pa. St. 395; Commonwealth v. Reyburg, 122 Pa. St. 299; Kettering v. City of Jacksonville, 50 Ill. 39; State v. Yager, 72 Ia. 421; State v. O’Connell, 99 Me. 61; State v. Intoxicating Liquors, 76 Ia. 243. “But if the statute specifically forbids the unlicensed sale of ‘malt liquor/ the question of the intoxicating properties of the liquor sold is immaterial ; it is only necessary to determine whether it was a malt liquor.” 23 Cyc. 60. “Any liquor which is named or plainly included in the statute must be held intoxicating *461 as a matter of law, without inquiry into its actual properties, and even though, as a matter of fact, it is not capable of producing intoxication.” 23 Cyc. 57.

It is claimed that the words “malt, spirituous, or vinous liquors” and “intoxicating drinks,” as used in section 11, and “intoxicating liquors,” as used in section 20, are used interchangeably, and all mean the same. To this we cannot agree. As we have seen, the statute prohibits the sale of either “malt,” “spirituous,” or “vinous” liquors in specific terms by name. As said in many of the cases above cited, this is a specific and direct prohibition, but the legislature, recognizing the fact that there are . other intoxicants which do not come strictly within the classes named, the words “or any intoxicating drinks,” as in section 11, and “any intoxicating liquors,” as in section 20, were used to cover all kinds not within the classes named; that, if the charge and proof are that any one of the classes were sold or kept for sale, no proof of the intoxicating property of the liquor was necessary, and that it is only necessary to prove that the liquor sold or kept for sale is one of the classes forbidden. But, should the accusation refer to any other kind of liquor, it should be alleged and proved that the article was intoxicating. This, I think, is the correct interpretation of the statute and without further inquiry the judgment of the district court should be affirmed.

However, there is another feature of this case upon which we all agree, and that is, whether correctly or incorrectly, the district court did submit the question of the intoxicating quality of the liquor to the jury, and that by their verdict the jury answered the question. The averments of the information are that, at the time and place named in the several counts, plaintiff in error kept for sale and sold “certain malt and intoxicating liquor, to wit, ‘malt tonic,’ ” etc. The same language, descriptive of the a:'tide sold or kept for sale, is used in each of the five counts in the information. The widest latitude was allowed plaintiff in error in his efforts to prove that the *462 drinks sold and kept for sale were not intoxicating. A number of witnesses who had partaken of the beverage were called, and testified to the fact of drinking the same, and that no intoxicating effect was felt by them, and that the drink was not intoxicating. One witness who was called by the state testified that he drank of the liquor, and it had the same effect upon him as beer, but in a less degree. The state chemist testified that the intoxicating ingredient was alcohol, and the effect depended upon the individual drinking the liquor, and the lower grade or per cent, of alcohol would produce intoxication in a person who was not accustomed to drinking, while a higher grade would be necessary to intoxicate the individual who was in the habit of drinking the stronger liquors.

The court instructed the jury that the material allegations which the state must prove were that the plaintiff in error kept or sold liquors “as charged in the information”; that in order to convict it was necessary that the proof show that plaintiff in error had the liquors “described in the information” and sold the same. It is not deemed necessary to further refer to thp instructions. It is sufficient to say that the instructions, while not as explicit as they might have been, had any Upon that point been necessary, yet, when taken in connection with the evidence, were sufficient to submit the question of the intoxicating properties of the liquor to the jury. We are of the opinion, however, that the question was improperly submitted, and that no evidence should have been received upon that subject. The error, however, having been by the procurement of plaintiff in error, and in no sense to his prejudice, he cannot complain.

The judgment of the district court is

Affirmed.

Rose, J., not sitting.