Fuller v. City of Jackson

• Decision Date: 30 May 1910
• Court: Mississippi Supreme Court
• Parties: CHARLES N. FULLER v. CITY OF JACKSON

52 So. 873

97 Miss. 237

CHARLES N. FULLER v. CITY OF JACKSON

Supreme Court of Mississippi

May 30, 1910

March 1910 [Copyrighted Material Omitted]

Judgment in one case affirmed in other reversed.

MAYES, C. J. ANDERSON, J., concurs. SMITH, J., dissents.

OPINION

SUGGESTION OF ERROR.

After the delivery of the foregoing opinions counsel for appellee presented a vigorous suggestion of error.

MAYES, C. J.

The same appellant is here on appeal in two cases; one being No 14, 306 and the other No. 14, 307. For convenience I follow the method adopted by Judge ANDERSON, and discuss the two cases in this opinion. Both cases charge the unlawful sale of "vinous, malt, alcoholic, intoxicating, and spirituous liquors." Both originated in prosecutions conducted for a violation of the ordinance of the city of Jackson in the court of the police justice of the city. The ordinances of the city prohibiting the sale or barter of intoxicating liquors are rescripts of chapter 115, Laws 1908. In discussing these cases, therefore, I shall deal with them as though they arose under the act.

The facts in both cases are agreed to, and on the trial in the circuit court the agreed facts constituted all the testimony. In case No. 14, 306 it was agreed that the beverage sold was "Brewett, " and contained eighteen one hundredths of one per centum of alcohol by volume, and thirteen one hundredths of one per centum of alcohol by weight. There is no proof in the record as to how this "Brewett" is made--that is to say, whether or not it is a malt liquor--nor is it proven to be vinous, or spirituous. The agreed facts show only that it contains a small quantity of alcohol. Under the agreed facts this beverage, therefore, if a prohibited liquor, must be such a prohibited liquor as falls within the class designated as "alcoholic liquor." Case No. 14, 307 charges the same offense; but the agreed facts show that the beverage in that case was "Malt Ale, " and contained two and seventy-one one hundredths of one per centum of alcohol by volume and two and twelve one hundredths of one per centum of alcohol by weight. In the latter case the agreed facts concede that it is a malt liquor.

It may be also stated that courts take judicial notice of the fact that any liquor containing more than two per centum of alcohol by weight will intoxicate, as a matter of fact, if drunk to excess. See full report of case of United States v. Cohn, 2 Indian Terr. 474, 52 S.W. 38. In the Cohn case, in the proof found in the report of the case, it is shown by expert witness that beverages containing more than two per centum of alcohol will intoxicate, and the trial court in that case took judicial notice of it. It is also shown in that case that the government fixed two per centum of alcohol, by weight, as in truth constituting an intoxicating liquor. I feel, therefore, that I am safe in saying that I shall take judicial notice of a fact so well established by proof and legislative action.

Chapter 115, p. 116, Laws 1908, enumerates certain classes of liquors which cannot be sold, or bartered, under any condition. The statute prohibits the sale of such liquors as it expressly names, without regard to their intoxicating or nonintoxicating quality, and without reference to what quantity of alcohol may be contained in them. If a party is charged with merely selling an "alcoholic liquor, " and such liquor is neither vinous, malt, or spirituous, if the quantity of alcohol is so negligible as not to constitute the beverage sold an "alcoholic liquor, " of course there can be no conviction of a sale of such liquors, even if it be shown that in truth there is some alcohol in the beverage. There must be enough alcohol in it to make it "alcoholic" as the statute says; but I shall discuss this particular subject later.

The liquors expressly named which the law prohibits from being sold are "vinous, alcoholic, malt, or spirituous liquors, or intoxicating bitters." The sale of these liquors is prohibited without reference to whether in fact they intoxicate, but because it is well known that this class of liquor is of an intoxicating character. After expressly prohibiting the sale of the character of liquors named above, the statute then prohibits the sale of another class not enumerated, which are "all other drinks which if drunk to excess will produce intoxication." If a beverage be sold which does not fall within the first class named, then, only, is it necessary for such beverage to intoxicate before there can be a successful prosecution for a violation of the liquor laws. I confess that it is difficult to conceive of a drink that will intoxicate, which would not be included in the description of the expressly forbidden liquors; but the legislature, knowing the evasions resorted to by violators of the law and their activity in devising concoctions for this purpose, thought it safe to put a general prohibition on the sale of all other drinks which would intoxicate. In the Reyfelt case, 73 Miss. 415, 18 So. 925, it was held that, where a party was charged with selling any one of the expressly enumerated liquors prohibited to be sold, it was not necessary to go further and show that the liquor was intoxicating. In the case of Edwards v. City of Gulfport, 95 Miss. 148, 49 So. 620, it was again held that, wherever the liquor fell within the classes expressly prohibited by the statute, it was not necessary to prove that it was of an intoxicating character, and the court further held that the clause in the statute, which prohibited the sale of "other drinks which if drunk to excess will produce intoxication, " stood alone in the statute, having no reference to, or in any way qualifying, the preceding portion of the statute which prohibited the sale of any "vinous, alcoholic, malt, or spirituous liquors, " etc. This holding of the court is supported by the cases of State v. Auditor, etc., 68 Ohio St. 635, 67 N.E. 1062; United States v. Cohn, 2 Indian Terr. 474, 52 S.W. 38, 44.

In the latter of the above cases, the court, construing a statute similar to this, very pertinently asked: "If it were intended that only such of these as could be shown to be intoxicating should be included, why name them at all? Why not simply say that all intoxicating liquors and drinks should be prohibited?" In brief, the statute says that "vinous, alcoholic, malt, intoxicating or spirituous liquors, or intoxicating bitters, " cannot be sold at all, and then it says that it shall be lawful to sell all other drinks except such "other drinks which if drunk to excess will produce intoxication." If there is any beverage that can be conceived of by the ingenious violators of the law, not falling within the class named above which will not intoxicate, and which yet proves a desirable beverage for those inclined to purchase same for its character as an intoxicant, its sale may continue. I confess that I can conceive of no drink that can be devised not covered by the broad terms of the statute. It is not only held by this court that, where the laws expressly name and prohibit the sale of certain beverages as constituting beverages of an intoxicating character, it is immaterial that such beverage does not in fact intoxicate; but there is much authority elsewhere for this proposition. In the case of State v. York, 74 N.H. 125, at page 126, 65 A. 685, at page 686, it is said: "Where an act expressly prohibits the sale or keeping for sale of a particular liquor or class of liquors, it is not necessary to allege in the indictment thereunder, or to prove upon the trial, that the...