Hamilton v. State
| Decision Date | 13 January 1922 |
| Docket Number | No. 23816.,23816. |
| Citation | 133 N.E. 491,191 Ind. 466 |
| Parties | HAMILTON v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
James Hamilton was convicted of a violation of the prohibition law, and he appeals. Reversed.
Clyde Karrer, Carl Schoeneman and Richard L. Ewbank, all of Indianapolis, for appellant.
U. S. Lesh, Atty. Gen., and Mrs. Ed. F. White, Dep. Atty. Gen., for the State.
This was a prosecution by the appellee against the appellant for an alleged violation of the prohibition law. The prosecution was upon an affidavit in five counts. The first count alleged the sale of whisky, gin, wine, and beer, and wood alcohol. The second, third, fourth, and fifth counts of the affidavit alleged offenses only as to whisky, gin, wine, and beer. There was no evidence whatever in the case as to any of these liquors, except wood alcohol, and the state does not claim appellant's conviction upon either the second, third, fourth, or fifth counts of the affidavit.
In appellee's brief the Attorney General says:
The conviction of the defendant rests entirely upon the first count of the affidavit.
The trial was by the court, and the court found the defendant guilty. From a judgment on the finding the defendant appeals. The only question raised by the appellant is the question of the sufficiency of the evidence to support the finding of the court.
It may be conceded that the evidence shows the sale of half pint of wood alcohol to the person named as the purchaser, in the first count of the affidavit and at the time and place named. There is no evidence tending to show that the wood alcohol was purchased or used for beverage purposes. In fact, the evidence shows affirmatively that it was not so purchased or used. The question then arises whether wood alcohol falls within the prohibition statute.
Section 2 of the prohibition law (Acts 1917, p. 15), defines the words “intoxicating liquor” as follows:
“The words ‘intoxicating liquor’ as used in this act shall be construed to mean all malt, vinous, or spirituous liquor, containing so much as one-half of one per cent. of alcohol by volume, or any other intoxicating drink, mixture or preparation of like nature; and all mixtures or preparations containing such intoxicating liquor, whether patented or not, reasonably likely or intended to be used as a beverage, and all other beverages containing so much as one-half of one per cent. of alcohol by volume.”
Section 4 of the prohibition act provides that after the 2d day of April, 1918, it shall be unlawful for any person to manufacture, sell, barter, exchange, give away, or otherwise dispose of any intoxicating liquor except as in this act provided. Section 5 provides that the provisions of this act shall not be construed to prohibit the manufacture and sale of pure grain alcohol for medicinal, scientific, or mechanical purposes, or wine for sacramental purposes, or to prohibit the manufacture and sale of denatured alcohol.
An examination of the act shows that unless the sale of wood alcohol is allowed, under the provision for the sale of denatured alcohol, then it would be unlawful for any person to sell wood alcohol for any purpose whatever. If it is included in the provision for the sale of denatured alcohol, its sale, as charged in the affidavit in this case, was not unlawful.
The statute includes:
“All mixtures or preparations containing intoxicating liquor, whether patented or not, reasonably likely or intended to be used as a beverage.”
Is wood alcohol an intoxicating liquor, or a mixture or preparation containing intoxicating liquor reasonably likely or intended to be used as a beverage? In State of Washington v. Tatsuo Takano, 94 Wash. 119, 162 Pac. 35, the court said:
“While wood alcohol is an article which has come into general commercial use only in recent years, its poisonous and dangerous character is well known; it is within the knowledge of men.”
That opinion recognizes the fact, which we presume will...
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