Marks v. State

• Decision Date: 18 February 1909
• Citation: 159 Ala. 71,48 So. 864
• Parties: MARKS v. STATE.
• Court: Alabama Supreme Court

48 So. 864

159 Ala. 71

MARKS v. STATE.

Supreme Court of Alabama

February 18, 1909

Appeal from Criminal Court, Jefferson County; A. C. Howze, Judge.

Julius Marks was convicted of selling spirituous liquors or mead and he appeals. Reversed and remanded.

John T Glover, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for the State.

MAYFIELD J.

This appeal involves questions which require a construction of the general prohibition laws of this state, not necessarily as to the constitutionality of such laws, but as to the meaning, interpretation, and effect of certain provisions contained therein. The prosecution was commenced by, and was based solely upon, an affidavit containing three counts. The first attempted to charge that defendant aided, abetted, or procured an unlawful sale, purchase, or other unlawful disposition of spirituous, vinous, or malt liquors, etc.; second, that defendant acted as agent or assisting friend of the seller or purchaser in procuring an unlawful sale or purchase of such liquors, etc.; third, that defendant sold spirituous, vinous, or malt liquors, or mead, which, if drunk to excess, will produce intoxication. The defendant demurred to the affidavit or complaint, and assigned many grounds therefor, too numerous to mention.

The court overruled the demurrer, and trial was had upon the general issue. The court, at the request of the state, gave the general affirmative charge for the state as to the third count, refused a like charge to the defendant as to each count separately, and refused a great number of other charges requested by the defendant. The jury, after being out for an hour or more, returned to the court for further instruction. The foreman inquired of the court if the jury had to find that mead would intoxicate. The court replied that the giving of the general affirmative charge relieved them of that; that this charge meant that if the jury believed the evidence beyond a reasonable doubt they must convict the defendant, which action of the court was excepted to by defendant.

Many questions are reserved as to rulings of the trial court touching the evidence. The trial resulted in a conviction under the third count only, and a fine of $50 was imposed.

The first two counts each attempted to charge an offense under section 7363 of the Code of 1907, which section is codified from the act of March 12, 1907 (Acts 1907, p. 366). The third count evidently attempted to charge an offense under the general statutory prohibition law known as the "Carmichael Bill," passed at the extraordinary session, and approved November 23, 1907 (Gen. Acts Sp. Sess. 1907, pp. 71-76).

The verdict and judgment eliminated all questions as to the first two counts, and render unnecessary a decision or construction of section 7363 of the Code of 1907, but require a construction of section 1 of the act of November 23, 1907 (above referred to), reading as follows: "Section 1. Be it enacted by the Legislature of Alabama, that it shall be unlawful for any person, firm, corporation, or association, within this state to manufacture, sell, barter, exchange, give away to induce trade, furnish at public places or otherwise dispose of any alcoholic, spirituous, vinous or malt liquors, intoxicating bitters or beverages or other liquors or beverages by whatsoever name called, which if drunk to excess will produce intoxication, except as hereinafter provided." This section has never been codified, having been passed after the adoption of the Code, and hence is not controlled by any Code provisions or prior statutes, though some of the Code provisions are applicable to prosecutions under it, and it may be construed in pari materia with other provisions of our laws.

It was admitted that defendant sold one bottle of a beverage known as "mead" (a beverage sometimes called "metheglin," made of water and honey), since the 1st day of January, 1908, when the prohibition law went into effect as to Jefferson county. This was the only disposition of any liquor or beverage by the defendant which was attempted to be proven. The state introduced in proof a chemical analysis of another bottle of the beverage known as "mead," and some evidence tending to show it was a malt and intoxicating liquor; while the defendant's evidence tended to show that it was not an intoxicating or malt liquor. It was conceded, however, that it contained maltose and alcohol; but it was contended by the defendant that it did not contain either in such quantities, or in such form, or under such conditions as to come within the meaning of the statute.

The trial court instructed the jury that if they believed the evidence beyond a reasonable doubt they must find the defendant guilty under the third count. This charge can be supported or justified only upon the theory that mead is either an "alcoholic," "spirituous," "vinous," "malt," or "intoxicating" liquor or beverage, within the meaning of the statute. If the statute inhibits the sale of all liquor or beverage which contains any alcohol or malt, then the charge of the court was correct; otherwise, it was erroneous. Whether or not this beverage was an intoxicant was evidently considered immaterial by the trial court. Upon no other theory can this action of the trial court be justified. In this we think the trial court was in error.

This court does not judicially know that mead or metheglin is an alcoholic, spirituous, vinous, malt, or intoxicating liquor or beverage, or that, if it is drunk to excess, it will produce intoxication. Nor do we think that the fact that it contains 1.46 per cent. of alcohol by weight, and 1.88 per cent. by volume, and 1.20 per cent. maltose, making about 2 1/2 teaspoonfuls of alcohol to the pint, makes it as a matter of law within the inhibition of the statute. We are therefore clearly of the opinion that it was a question for the jury, under the evidence, to say whether or not mead was alcoholic, spirituous, vinous, malt, or intoxicating, or whether it was a liquor or beverage which, if drunk to excess, will produce intoxication. In other words, was the liquor or beverage sold within the inhibition of the statute? That was clearly a question of fact under the evidence, and not one of law.

If the statute had prohibited the sale of mead, or declared that it was an alcoholic, spirituous, vinous, malt, or intoxicating liquor or beverage, or if the court judicially knew that it was within any one of these classes, then under the evidence in this case the court could probably have given the affirmative charge; but it clearly appears that, if mead is within the inhibition of the statute, it is clearly under the last clause of the first section of the statute, which inhibits the sale, etc., of "other liquors or beverages by whatsoever name called, which if drunk to excess will produce intoxication," and the evidence was in dispute as to whether or not it would produce intoxication, if drunk to excess. One witness, shown to be a highly educated physician, testified in substance that a man's stomach would not contain enough of the beverage to produce intoxication; that enough might be taken in the stomach to produce a thrill, but nothing more. Another witness testified that he had drunk a great deal of mead--as much as four bottles in an hour--and that it would not intoxicate. True, there was some evidence to show it would intoxicate if drunk to excess, and, while we can no more pass upon the weight or sufficiency of the evidence than could the trial court, yet we do say there was ample evidence to require the submission of this fact to the jury.

While we agree in part with counsel for appellant, we cannot concur with them in the contention (so forcefully and ably insisted upon) to the effect that the clause, "which if drunk to excess will produce intoxication," qualifies and relates to each and all of the liquors or beverages which precede it--that is, to alcoholic, spirituous, vinous, or malt drinks. We are inclined to the opinion that this phrase qualifies or refers only to the clause, "or other liquors or beverages by whatsoever name called," which immediately precedes it, and which two phrases, taken together, constitute one of the six classes of liquor and beverage the sale of which is prohibited. We are led to this conclusion, not alone by the composition and grammatical construction of this section of the act, but also by a reference to the history of such legislation in this and other states, and the judicial construction put upon the terms "spirituous," "vinous," "malt," and "intoxicating" liquors and beverages by this and other courts. These terms each had a well defined and accepted judicial construction by the courts, when used in such statutes; and it does not appear that there was any intention to change that well accepted judicial construction. They were severally treated as being well known and defined; but the phrase, "or other liquors or beverages by whatsoever name called," is clearly shown not to refer to every well known or defined class, but is intended to include any and all other classes or kinds, not embraced in the foregoing five classes named, "which if drunk to excess will produce intoxication."

It is said by counsel that the punctuation of the section shows that this phrase refers to all the preceding classes. Punctuation may be looked to, for the purpose of aiding in ascertaining the meaning. It is intended to make the meaning apparent and more readily ascertainable than it would otherwise be; but it can never control or destroy a meaning which is otherwise apparent and certain. When a prohibition statute names, designates, or enumerates the kinds, classes or species of beverages or liquors against which its...