Luther v. State

• Court: Nebraska Supreme Court
• Writing for the Court: REESE, C. J.
• Citation: Luther v. State, 83 Neb. 455, 120 N. W. 125 (Neb. 1909)
• Decision Date: 20 February 1909
• Docket Number: 15,188
• Parties: JOHN A. LUTHER v. STATE OF NEBRASKA

120 N.W. 125

83 Neb. 455

JOHN A. LUTHER v. STATE OF NEBRASKA

No. 15,188

Supreme Court of Nebraska

February 20, 1909

REHEARING of case reported in 80 Neb. 432. Judgment of district court affirmed.

AFFIRMED.

REESE C. J. ROSE, J., not sitting. LETTON, J., BARNES, J dissenting.

OPINION

REESE, C. J.

This case was decided at the September term, 1907, of this court, and the opinion is reported in 80 Neb. 432. The attorney general filed a motion for rehearing, which was sustained, and the case has been submitted to the court upon carefully prepared briefs and able oral arguments by counsel. The contention of the attorney general is: First, that the proof upon the trial was conclusive that the liquor sold and kept for sale was "malt liquors," and therefore the selling and keeping for sale of the liquors described was a violation of law, and the conviction should be sustained without any inquiry as to the intoxicating or nonintoxicating properties of the liquor; second, that, should the court hold otherwise, the question of the intoxicating quality of the liquor kept for sale and sold was sufficiently submitted to the jury, and that in that event the judgment should be affirmed. It is contended by plaintiff in error: "First, it is not a violation of our liquor law to sell a malt extract, unless the same is shown to be of such an intoxicating character that it may be used as a beverage, and that when used in practicable quantities it will produce intoxication; second, that the court will not take judicial notice that malt extract is an intoxicating liquor, but that this question is one of fact to be submitted to the jury; third, that the instructions requested by the defendant should have been given, and that the court erred in omitting from the instructions given the element of the intoxicating character of malt extract as one of the material issues to be tried."

It is charged in the first count of the information that plaintiff in error unlawfully kept for the purpose of sale "certain malt and intoxicating liquor, to wit, malt tonic," with intent to sell the same; and in the second count that he unlawfully sold to a person named "certain malt and intoxicating liquor, to wit, malt tonic"; and in the third count that he sold of said liquor to another person; and in the fourth count that he sold the same to a person named; and in the fifth count that he sold the same to yet another person named. The jury returned a verdict finding plaintiff in error guilty on all the counts of the information. The court imposed a fine of $ 100 upon each count.

It was shown upon the trial that upon the filing of the complaint before the magistrate a search warrant was issued, and the sheriff in making a search of the premises of plaintiff in error found "four full barrels and about a half barrel" of the liquor. There was ample proof that the liquor was kept for sale and sold to be drunk as a beverage, and that a considerable quantity of it had been sold and consumed. The liquor was in bottles, each bottle bearing an illuminated label as follows, omitting names and locality of the brewing company: " Brewing Company's NON INTOX. A nonintoxicating malt tonic. Guaranteed to contain less than 2% of alcohol. Brewed and bottled by the Brewing Co., , Illinois. Western Branch, , Mo." The state chemist was called as a witness on the part of the state, and testified that samples of the liquor had been sent to and analyzed by him, and that the liquor was malt liquor; that all liquors that were brewed from malt were necessarily malt liquors; and that the liquor contained in the bottles is classed "in the class of beers"; that the quantity of alcohol contained in the liquor was one and one-tenth per cent.; that the quantity of alcohol usually contained in the lager beer of commerce is on average "around 3 per cent." There is no controversy as to the possession and sale of the liquors by plaintiff in error, nor that they were sold and to be sold to be drunk as a beverage. The only contentions are as outlined above. There was no effort to contradict the testimony of the state chemist to the effect that the liquor was a malt liquor, that it contained the percentage of alcohol named, and that it is classed as and among "the class of beers."

It is contended by the state that under our statutes it was not essential that the prosecution should go farther with its proof; that if the liquor was a "malt liquor" and belonged to the class known as beer, the statute having prohibited the sale of "malt liquor," and this court having so often decided that the courts will take judicial notice that beer is an intoxicant, the verdict was right and should be sustained. Chapter 50, Comp. St. 1907, commonly known as the "Slocumb Law," provides in the first section that licenses may be issued for the sale of "malt, spirituous and vinous liquors." In section 6 the issuance of a license to sell "malt, spirituous and vinous liquors" is prohibited, unless the applicant gives the bond required by the section. Section 10 prohibits any licensed person from selling intoxicating liquors to the classes of persons named therein. Section 11 provides that "all persons who shall sell, or give away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks," without having first complied with the provisions of the act, and obtained a license, shall be deemed guilty of a misdemeanor and punished as prescribed in the section. Section 13 makes it a crime for any licensed person to sell or give away, either by himself or another in his employ, any "malt, spirituous, or vinous liquors," which shall be adulterated. Section 14 makes it a crime to sell or give away "any malt, spirituous and vinous liquors on the day of any general or special election, or at any time during the first day of the week, commonly called Sunday." Section 20 renders it unlawful for any person to keep for the purpose of sale without license "any malt, spirituous, or vinous liquors," and "any person or persons who shall be found in possession of any intoxicating liquors in this state, with the intention of disposing of the same without license," shall be deemed guilty of a misdemeanor. Section 25 confers upon the corporate authorities of cities and villages the power to license, regulate and prohibit "the selling or giving away of any intoxicating, malt, spirituous and vinous, mixed or fermented liquors within the limits of such city or village." Section 29 renders it "the duty of all vendors of malt, spirituous, or vinous liquors" to keep the windows and doors of their places of business unobstructed.

We have thus quoted from the different sections of the law for the purpose of seeking light upon the legislative intent in the passage of the act under consideration. It is contended by counsel for plaintiff in error that it was the legislative intent to suppress the sale of intoxicating liquors, and that, although the term "malt liquors" is used in the act, yet it was not the purpose to prevent the sale of malt liquors or liquids, unless they contained a sufficient quantity of alcohol to produce intoxication; or, stated differently, that the language used in sections 11 and 20 must be construed to mean as if it read "intoxicating malt liquor." I cannot read the statute in that light. As well might we apply the adjective to the words "spirituous" and "vinous." It is my opinion that the legislature realized and appreciated the fact that malt, spirituous and vinous liquors are equally largely used as a beverage, and are alike injurious to the consumer, if not by producing immediate intoxication when taken in small quantities, by producing the same effect when more is taken, and at the same time creating an abnormal appetite which leads to dissipation and inebriety. At any rate, the law prohibits the sale of "malt liquors" without a license, and we must obey its plain mandate. Alcoholic beverages are under the ban of the law in some form or other in most civilized countries. They are known to be the cause of crime, destitution and pauperism. Malt liquors used as beverages are known to contain that destructive ingredient. It was proved upon the trial of this case that the beverage kept and sold by plaintiff in error contained it. The liquor sold by him was simply an effort to evade the law. The title of the act is "An act to regulate the license and sale of malt, spirituous, and vinous liquors," etc. The whole act is built upon that title. Malt liquors are as much within both the letter and spirit of the law as either of the other classes named. To say that the legislature intended to provide for the regulation and license of intoxicating malt liquors would require the same word to be used as defining the other classes, and would be legislating and reading into the statute a word which the legislature clearly intended should not be there. This is not the province of the courts. We are sustained in this view by many adjudicated cases, some of which we cite, without quoting: Kerkow v. Bauer, 15 Neb. 150, 18 N.W. 27; Sothman v. State, 66 Neb. 302, 92 N.W. 303; Peterson v. State, 63 Neb. 251, 88 N.W. 549; State v. Teissedre, 30 Kan. 476, 2 P. 650; Stout v. State, 96 Ind. 407; Briffitt v. State, 58 Wis. 39, 16 N.W. 39; Commonwealth v. Timothy, 8 Gray (Mass.) 480; Commonwealth v. Anthes, 12 Gray (Mass.) 29; Eaves v. State, 113 Ga. 749, 39 S.E. 318; State v. Gill, 89 Minn. 502, 95 N.W. 449; Commonwealth v. Dean, 14 Gray (Mass.) 99; State v. Jenkins, 64 N.H. 375, 10 A. 699; Hatfield v. Commonwealth, 120 Pa. 395, 14 A. 151; Commonwealth v. Reyburg, 122 Pa. 299, 16 A. 351; Kettering v. City of Jacksonville, 50 Ill. 39; State v. Yager, 72 Iowa 421, 34 N.W. 188; State v. O'Connell, 99 Me. 61, 58 A. 59; State v....