Brinkley v. State

• Decision Date: 17 November 1911
• Parties: BRINKLEY v. STATE.
• Court: Tennessee Supreme Court

143 S.W. 1120

125 Tenn. 371

BRINKLEY v. STATE.

Supreme Court of Tennessee.

November 17, 1911

Appeal from Circuit Court, Warren County; Ewin L. Davis, Judge.

J. W Brinkley was convicted of the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept, and he appeals. Affirmed.

Jno. L Willis, for appellant.

Attorney General Cates, for the State.

LANSDEN J.

The plaintiff in error was indicted in the circuit court of Warren county at its May term, 1911, for the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept. The defendant filed a plea of former acquittal, and, upon the determination of the issues raised by this plea against him by the trial judge without the intervention of a jury, he entered his plea of not guilty. A trial was had by the court and jury, which resulted in a verdict of guilty, and a judgment of fine and imprisonment, from which he has appealed and assigned errors. On the trial before the jury, the state offered in evidence a copy of the record in the office of the internal revenue collector of the United States for the district of Tennessee showing that the plaintiff in error had paid the internal revenue special tax as a retail malt liquor dealer on Main street, McMinnville, Tenn., from September 1, 1910, to June 30, 1911. This record, together with proof that the place of business of the plaintiff in error was within four miles of a schoolhouse where school is kept, is all the proof that was offered in behalf of the state. Plaintiff in error did not testify in his own behalf, but introduced the county court clerk, who testified that he issued a distress warrant against the plaintiff in error, which was placed in the hands of the sheriff, and the plaintiff in error's place of business was closed by the sheriff on Saturday, November 5, 1910, and the sheriff locked up the house, and on the following Monday, November 7th, the witness and others invoiced the stock of goods of the plaintiff in error found in his place of business. There was a stock of beerette, coca-cola, soda fount, ice box, glasses, counter or bar, which looked like an old saloon bar, a mirror, two pool tables, and a screen in front of the door. The counter was up towards the front door, and the poolroom in the rear of the house. No intoxicating liquors were found. Two or three empty whisky bottles were found upstairs in plaintiff in error's house, where there was a bed. The beerette looked and tasted like beer, according to the evidence of plaintiff in error's witnesses; but there is no proof that it was intoxicating.

Chapter 355, Acts of 1903, provides in the first section thereof as follows:

"That in all prosecutions for a violation of the law prohibiting the sale of intoxicating liquors within four miles of a schoolhouse, commonly known as the "four-mile law," the fact that defendant has paid the internal revenue special tax, as a retail liquor dealer or is in possession of an internal revenue tax stamp as a retail liquor dealer, shall be prima facie evidence of sales of intoxicating liquors within the meaning of the four-mile law, during the time for which he has paid the internal revenue special tax, or that is covered by the internal revenue special tax stamp possessed by him: Provided, revenue license in this act shall not be construed to mean license for use of manufacturers and druggists or others in manufacturing or compounding or otherwise than for use in sale at retail under state law."

Chapter 384 of the Acts of 1909 provides in the first section thereof as follows:

"That in all prosecutions for violation of the laws of this state prohibiting the sale of intoxicating liquors, copies of the records in the office of the internal revenue collector of the United States for the district of Tennessee, showing that the defendant has paid the internal revenue special tax as a liquor dealer, or showing the issuance to the defendant of an internal revenue special tax stamp, shall be admitted as competent evidence, when such copies are certified to be full, true and complete by the district internal revenue collector."

Copy of the record from the office of the internal revenue collector, introduced by the state and relied upon as making a prima facie case of guilt, is as follows:

"Name, Brinkley, J. W. Business, retail malt liquor dealer. Place, MeMinnville, Tenn., Main street. From what time, September 1--10. Amount of tax, $16.67. Date of payment or issue of certificate, Sept. 30--10. Serial number of stamp, 12504."

"I, W. A. Dunlap, collector of internal revenue for the district of Tennessee, hereby certify that the foregoing is a full, true, and complete copy of entries on record 10 in my office, showing the payment by special tax payers in Warren county of special tax of liquor dealers for the period from July, 1910, to June 30, 1911.

"Witness my hand and seal of office, at office in the city of Nashville, Tennessee, this 5th day of August, 1911.

"W. A. Dunlap,

"Collector of Internal Revenue, Dist. of Tenn.,

"By E. S. Priest, Chief Clerk."

The learned trial judge gave the following instructions to the jury:

"The state has introduced and read to you a certified transcript of the record of the issuance of federal liquor license or tax stamp in Warren county, Tenn., and I instruct you that this transcript is competent evidence, and that it shows that the defendant on September 30, 1910, paid $16.67 for, and received, a certificate from the United States government authorizing him to engage in the business of a retail malt liquor dealer on Main street, in McMinnville, Tenn., from September 1, 1910, to June 30, 1911.

"I further instruct you, in the language of the statute, chapter 355 of the Acts of 1903, that in all prosecutions for a violation of the law prohibiting the sale of intoxicating liquors within four miles of a schoolhouse, commonly known as the four-mile law, the fact that defendant has paid the internal revenue special tax as a retail liquor dealer, or is in possession of an internal revenue tax stamp as a retail liquor dealer, shall be prima facie evidence of sales of intoxicating liquor within the meaning of the four-mile law, during the time for which he has paid the internal revenue special tax, or that is covered by the internal revenue special tax stamp possessed by him.

"I further instruct you that the term 'liquor,' used in said statute, is a general term, comprehending and including the different kinds of intoxicating liquors, which are classed and designated as spirituous, vinous, and malt intoxicating liquors, as charged in the indictment in this cause. What is meant by 'spirituous liquors' is distilled liquor, such as whisky and brandy; what is meant by 'vinous liquors' is liquor made from the grape, etc., such as wine; and what is meant by 'malt liquors' is liquor made from malt, such as beer, malt, etc.

"Consequently you are instructed that the federal internal revenue special tax stamp shown to have been issued to defendant merely authorized him to sell malt liquor; and, while the possession of such a license is prima facie evidence of sales of malt intoxicating liquors during the time he possessed such federal license, yet it is not prima facie evidence of sales of spirituous or vinous liquors, or that he exercised the privilege of a dealer in spirituous or vinous intoxicating liquors.

"However, you are instructed that such presumption arising from the possession of federal license or internal revenue special tax stamp may be rebutted by such proof as satisfies you that the defendant did not make any sales of malt intoxicating liquor on the date charged in the indictment, or by such proof as raises in your minds a reasonable doubt as to whether he made such sales on the date stated.

"Applying the law to the facts in this case, you are instructed that if you find from the proof, and believe beyond a reasonable doubt, that the defendant retailed or sold malt intoxicating liquors on the date charged in the indictment, and in Warren county, Tenn., and within four miles of a schoolhouse where a school was kept, then he would be guilty as charged, and you should so find.

"On the other hand, if there is a reasonable doubt in your minds as to defendant's guilt as charged, you should acquit him."

The assignments in this court, which will be considered in this opinion, are that chapter 355, Acts of 1903, is unconstitutional, because it violates section 16 of article 1 of the Constitution of this state, forbidding excessive bail, excessive fines, and cruel or unusual punishment, for this reason: It is said that a person may be convicted and imprisoned for life by such evidence for a series of small misdemeanors, providing for a jail sentence of six months, if he should have such license issued to him for six months or more, because an indictment would lie, and a conviction could be had, upon the evidence of the license for each day during the period the license had to run, and also because the Legislature has no power by legislative act to declare the possession of such a license to be prima facie evidence of guilt, as this would, in effect, be declaring a thing to be that which in truth and in fact it is not.

It is also said this legislation is unconstitutional as class legislation, because it excepts from its provisions druggists and others who handle it and manufacturers who make intoxicating liquors.

1. This court has never declared void an act of the...