Frix v. State
| Decision Date | 19 December 1923 |
| Parties | FRIX v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Bradley County; S. C. Brown, Judge.
J. L Frix was convicted of unlawfully manufacturing and attempting to manufacture whisky, and brings error. Affirmed.
Wm. H Swiggart, Jr., Asst. Atty Gen., for the State.
This is an appeal by the defendant below (plaintiff in error here) who will hereinafter be referred to as defendant, from a judgment rendered by the circuit court of Bradley county at its May term, 1923, upon a conviction for unlawfully manufacturing and attempting to manufacture whisky. The judgment below provided that defendant should pay a fine of $400, the amount assessed by the jury, and undergo confinement in the county workhouse for a period of four months.
The first assignment of error is that the trial court erred in overruling defendant's motion to quash the indictment upon the several grounds set out in said motion.
In the brief filed in support of this assignment of error, only two questions are presented:
First, is Acts 1923, c. 14, which attempts to amend chapter 10, Acts of 1909, prohibiting the manufacture of intoxicating liquor, unconstitutional; and, second, is the indictment insufficient, in that it charges the manufacture "or" an attempt to manufacture; defendant insisting that the use of the alternative in this connection renders the indictment bad for uncertainty?
The latter question is raised by the third ground of the motion to quash, which is as follows:
"Because the indictment charges an alleged offense in the alternative, viz.: The manufacture or attempt to manufacture intoxicating liquors, to wit, whisky."
This ground of the motion to quash was manifestly predicated upon a misunderstanding of the language used in the indictment. The indictment does not charge that the defendant manufactured or attempted to manufacture, but charges that defendant "unlawfully did attempt to manufacture and did manufacture intoxicating liquors, to wit, whisky or brandy."
The criticism of the indictment which is made in the motion to quash is therefore refuted by the language of the indictment itself.
It is next contended by defendant that Acts 1923, c. 14, which purports to amend chapter 10 of the Acts of 1909, creates such an irreconcilable conflict between its provisions and the provisions of the original act that the original act is rendered void and unenforceable.
In the brief, in support of this assignment of error, defendant undertakes to interline the original act of 1909 with the language of the amendatory act of 1923, which does render the provisions of the two acts repugnant and ambiguous.
The state insists that the proper method of construing and applying the amendment of 1923 is not to undertake to transfer bodily the language of the amendatory act and insert it in the original act, but to consider the meaning, intent, and effect of the original act as changed and modified by the intent, meaning, and effect of the amendatory act.
The caption of Acts 1909, c. 10, is as follows:
"An act to prohibit the manufacture in this state of intoxicating liquors for the purpose of sale."
Section 1 of said act makes it unlawful to manufacture for the purpose of sale any intoxicating liquor, including vinous, spirituous, and malt liquors, with an exception in favor of alcohol of not less than 188 proof when manufactured for chemical and other scientific purposes.
The caption of Acts 1923, c. 14, is as follows:
"An act to amend chapter 10 of the Acts of 1909, entitled 'An act to prohibit the manufacture in this state of intoxicating liquors for the purpose of sale,' so as to strike out the words 'for the purpose of sale' from both caption and body of said act; and so as to make it a misdemeanor to attempt to manufacture intoxicating liquor; 'Provided this act shall apply only to the manufacture or attempt to manufacture whisky and brandy.' "
The body of the act reads as follows:
"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that chapter 10 of the Acts of 1909, entitled 'An act to prohibit the manufacture in this state of intoxicating liquors for the purpose of sale,' be and the same is hereby amended so as to strike out the words 'for the purpose of sale,' from both the caption and body of said act, wherever they may appear therein. 'Provided this act shall apply only to the manufacture or attempt to manufacture whisky and brandy.'
Sec. 2. Be it further enacted, that the offense described in section 1 of this act shall be deemed to have been committed by any person who shall attempt to manufacture intoxicating liquor in this state, either by assembling the necessary apparatus for the purpose of manufacturing intoxicating liquor, or by doing any act preparatory to such manufacture; and any such attempt shall be punished as described in section 1 hereof.
Sec. 3. Be it further enacted, that this statute shall take effect from and after its passage, the public welfare requiring it."
It appears from the journals of the two houses that when the bill, which became the act of 1923, was introduced in the Legislature, the proviso at the end of the caption and at the end of the first section was not included, but was adopted by the Senate and House upon the report of a conference committee recommending its adoption.
It is the contention of the defendant that the proviso had the effect of excepting from the operation of the original act of 1909 the manufacture of intoxicating liquor other than whisky and brandy.
While this point is not material in the case at bar, since defendant was charged with the manufacture of whisky and brandy, the construction contended for by the defendant of the proviso to the amendment is not warranted.
The caption of the amendatory act makes it clear that the original act was to be amended only so as to strike out the words "for the purpose of sale" from the original act, and so as to make it a misdemeanor to attempt to manufacture intoxicating liquor. After expressing this purpose, the caption contains the proviso: "Provided this act shall apply only to the manufacture or attempt to manufacture whisky...
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...the officers to see in the trunk of the car with out a warrant. He admitted to them that 'well, you've got me.' In Frix v. State, 148 Tenn. 478, 256 S.W. 449, three officers went to the defendant's home, and, before making their presence known, saw through an open door of an outhouse at the......
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