In re Lockman

• Decision Date: 03 August 1910
• Parties: In re JACOB LOCKMAN, Habeas Corpus
• Court: Idaho Supreme Court

110 P. 253

18 Idaho 465

In re JACOB LOCKMAN, Habeas Corpus

Supreme Court of Idaho

August 3, 1910

INTOXICATING LIQUORS DEFINED-LOCAL OPTION STATUTE-NEAR BEER-MALT AND FERMENTED LIQUORS.

(Syllabus by the court.)

1. Section 31 of the local option statute (1909 Sess. Laws, page 18) defines intoxicating liquors as including "spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication."

2. Under the definition given by the legislature in sec. 31 of the local option statute, all "spirituous, vinous, malt and fermented liquors" are declared as a matter of law to be intoxicating, and it is unnecessary for the state to prove that any liquor or beverage falling within the enumerated class will in fact produce intoxication.

3. Under the provisions of the local option statute (sec. 31 thereof), it is necessary for the state to prove the intoxicating quality of all mixtures and preparations used or intended to be used as beverages which do not fall within the enumerated class designated as "spirituous, vinous, malt and fermented liquors."

4. The legislature in the enactment of the local option statute evidently had in mind a twofold object-first, that of discouraging, and as far as possible preventing intoxication, and intemperance in the use of intoxicants; and secondly, and equally important, that of protecting the youth of the state from acquiring a taste for intoxicants and the habit of indulging in drinks and beverages that contain the intoxicating element.

Original application for writ of habeas corpus. Writ issued and hearing had on return thereto. Petitioner remanded to the custody of the officer and proceeding dismissed.

Petitioner remanded. Proceeding dismissed.

Hawley Puckett & Hawley, for Petitioner.

We do not believe that the statute interpreted by the usual rules by which a well-educated man would interpret any writing can be called ambiguous, for we cannot conceive of any construction being correct which would limit the phrase "used as a beverage and produce intoxication," to the preceding words describing mixed drinks. If this statute is ambiguous, then we insist that the rule set forth in 26 Ency. of Law, at page 646 et seq., should be adopted.

"Statutes, in their nature penal, should not be extended by construction beyond their natural meaning." (Ind. School Dist. v. Collins, 15 Idaho 535, 128 Am. St. 76, 98 P. 857.)

There is one state in which the statutory provisions have sufficient analogy to the statutory provisions of our local option law for its decisions to be of guiding importance here. In the case of Ex parte Gray (Tex. Cr. App.), 83 S.W. 828, the court said: "If the liquor sold in the local option territory is not of an intoxicating quality, . . . . that is, if it is not such as to produce intoxication when taken in the stomach in such quantities as may practically be drunk, . . . . then it is not an offense to sell the same in local option territory." (See, also, James v. State, 49 Tex.Crim. 334, 91 S.W. 227.)

The defendant contends that the state is under the necessity of proving that "near beer" is an intoxicating liquor. At least the question of its intoxicating qualities would be referred to the triers of fact and would become solely a question for the jury. (Potts v. State, 50 Tex. Cr. 368, 123 Am. St. 847, 97 S.W. 477, 7 L. R. A., N. S., 194; State v. Hughes, 16 R. I. 403, 16 A. 911; Rau v. People, 63 N.Y. 277; State v. Giersch, 98 N.C. 720, 4 S.E. 193; State v. Muncey, 28 W.Va. 494; Wall v. State, 78 Ala. 417; State v. Starr, 67 Me. 242.)

Whether beer, which is not ale, porter or strong beer, is intoxicating is a question for the jury. (Commonwealth v. Blos, 116 Mass. 56; State v. Sioux Falls Brewing Co., 5 S.D. 39, 58 N.W. 1, 26 L. R. A. 138; Blatz v. Rorhrback, 116 N.Y. 450, 22 N.E. 1049; cases cited on p. 120, 13 Am. & Eng. Ann. Cases.)

Our local option law never intended that the sale of any beverage should be prohibited in prohibition territories, unless that beverage is capable of producing intoxication.

D. C. McDougall, Attorney General, O. M. Van Duyn, J. H. Peterson, and F. A. Hagelin, for the State.

Under the class of statutes which declare that a certain class or certain classes of liquor, such as spirituous, vinous, malt, and fermented liquors, shall be deemed intoxicating, the question usually arises whether it is necessary to allege and prove that the particular liquor sold is in fact a spirituous, vinous, malt, or fermented liquor, and therefore intoxicating. See in this connection, as to proof in general, Hewitt v. People, 186 Ill. 336, 57 N.E. 1077, affirming 87 Ill.App. 367. Under such a statute it has been held that it is not necessary to allege that beer is a malt liquor. (Welsh v. State, 126 Ind. 71, 25 N.E. 883, 9 L. R. A. 664.) And, as the courts will take judicial notice that beer is a malt liquor, it is not necessary to introduce proof to that effect. (Mullen v. State, 96 Ind. 304; Stout v. State, 96 Ind. 407; Douglas v. State, 21 Ind.App. 302, 52 N.E. 238; Myers v. State, 93 Ind. 251 (overruling Weis v. State, 33 Ind. 204); Klare v. State, 43 Ind. 483; Shaw v. State, 56 Ind. 188; Plunkett v. State, 69 Ind. 68; and Kurz v. State, 79 Ind. 488.)

Where a statute expressly prohibits the sale of liquors, it is not necessary to allege in an indictment thereunder that the particular liquor or class of liquors, the sale of which is forbidden, is intoxicating. (Farris v. Commonwealth, 111 Ky. 236, 63 S.W. 615; State v. Gill, 89 Minn. 502, 95 N.W. 449; State v. Evans, 89 Minn. 506, 95 N.W. 1133; State v. Thornton, 63 N.H. 114; State v. Jenkins, 64 N.H. 375, 10 A. 699; People v. Cox, 106 App.Div. (N. Y.) 299, 94 N.Y.S. 526.)

Nor is it necessary upon the trial of such a prosecution to prove that the particular liquor or class of liquors is intoxicating. (Bond v. State, 56 Ark. 444, 19 S.W. 1062; Bradshaw v. State, 76 Ark. 562, 89 S.W. 1051; Eaves v. State, 113 Ga. 749, 39 S.E. 318; Kettering v. Jacksonville, 50 Ill. 39; State v. O'Connell, 99 Me. 61, 58 A. 59; Reyfelt v. State, 73 Miss. 415, 18 So. 925; Schwaf v. People, 4 Hun (N. Y.), 520; State v. Piner, 141 N.C. 760, 53 S.E. 305; Hatfield v. Commonwealth, 120 Pa. 395, 14 A. 151; State v. Rush, 13 R. I. 198; State v. Morehead, 22 R. I. 272, 47 A. 545; State v. Gravelin, 16 R. I. 272, 16 A. 914; State v. Spaulding, 61 Vt. 505, 17 A. 844.)

Sec. 31 of the local option law defines "malt liquor and mixtures thereof" as an intoxicating liquor. Further, the very fact that spirituous, malt and vinous liquors are particularly mentioned in the statute indicates that the legislature had in mind that they were intoxicating.

The last three words of sec. 31 are intended as adjectives only for the first subject immediately before it, to wit, "other drinks." The legislature named all liquors that it could possibly think of that were intoxicating, and then further to fortify the law which they were passing they put on the last clause referring to other drinks which could be shown to be intoxicating. The punctuation is such that we have no right to assume that the last three words of said section apply to any other subject than the one immediately preceding it.

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

The petitioner, Jacob Lockman, was arrested and taken before the probate court in Canyon county, charged with selling intoxicating liquor in a prohibition district contrary to the local option statute. A preliminary examination was held, and the evidence taken has been made a part of the petition in this case. The petitioner insists that the complaint and depositions fail to show that he has committed any public offense, and that he is therefore held unlawfully and is entitled to his discharge. The undisputed evidence as developed at the preliminary examination shows that the petitioner sold to one Charles S. Paynter at the city of Nampa four quart bottles of malt liquor, commonly known as "near beer." It is admitted that Canyon county is a prohibition district within the meaning of the local option statute. (1909 Sess. Laws, pp. 9 to 19.) It is also admitted that this liquor, called "near beer," is a malt liquor. A chemist who analyzed the near beer purchased from petitioner testified that he found it contained 1.28% alcohol, and 7.1% malt extract. He also testified that this beer did not contain enough alcohol to intoxicate anyone unless it would be in rare instances. He says that a person could not drink enough of it to secure sufficient alcohol to intoxicate him.

It was practically conceded on the argument that this drink, designated near beer, is classed among the "soft" drinks or "temperance" beverages and is not ordinarily used as an intoxicant.

The only question to be determined in this case is whether or not the liquor or beverage called near beer falls within the purview of the local option statute as the words "intoxicating liquors" are defined in sec. 31 thereof.

That section reads as follows:

"Sec. 31. The words 'intoxicating liquors' as used in this Act shall be deemed and construed to include spirituous, vinous, malt and fermented liquors, and all mixtures and preparations thereof, including bitters and other drinks that may be used as a beverage and produce intoxication."

The petitioner contends that the words, "that may be used as a beverage and produce intoxication," refer to and modify "spirituous, vinous, malt and fermented liquors and all mixtures and preparations thereof, including bitters and other drinks." In other words, the petitioner insists that the property or quality of producing intoxication is the test that must be applied in every...