McHenry v. State
| Decision Date | 06 April 1935 |
| Citation | 80 S.W.2d 655 |
| Parties | McHENRY v. STATE. |
| Court | Tennessee Supreme Court |
W. P. Puryear, Jr., of Gallatin, for plaintiff in error.
W. F. Barry, Jr., Asst. Atty. Gen., for the State.
Plaintiff in error was presented and convicted for violating section 11208 of the Code, which provides:
"It shall not be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer, as a beverage; and any one violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine for each offense of not less than one hundred dollars nor more than five hundred dollars, and imprisonment for a period of not less than thirty days nor more than six months."
The conviction was based upon the testimony of two boys that they purchased homebrew from plaintiff in error at her home, which they drank and became intoxicated.
By way of defense counsel for plaintiff in error invoked chapter 69, Pub. Acts 1933, the first section of which is in this language:
"That it shall hereafter be lawful in this State to transport, store, sell, distribute, possess, receive and/or manufacture beer of alcoholic content of not more than 3.2 per cent by weight, or any other beverage of like alcoholic content, subject to the privilege taxes and regulations hereinafter set out and provided, but no brewer or wholesaler of any such beverage or their agent or agents shall be permitted to make any loan or furnish any fixtures of any kind or have any interest, direct or indirect, in the business of any retailer of such beverages, or in the premises occupied by such retailer."
While this act does not purport to repeal section 11208 of the Code, it is the insistence of counsel for plaintiff in error that it repealed or modified same by implication, so as to make it lawful to sell beer of alcoholic content of not more than 3.2 per cent. by weight, or any other beverage of like alcoholic content, so that plaintiff in error in this sale was not violating the law.
Counsel for plaintiff in error predicated his defense upon the theory that beer and homebrew were the same character of beverage, and that the state had not carried the burden of establishing that this home-brew contained more than 3.2 per cent. alcohol.
We affirmed the case upon the theory that the court could not take judicial notice that beer and home-brew were the same kind of liquor. In so holding, we overlooked the clause in the act of 1933, "or any other beverage of like alcoholic content," which has been called to our attention in the petition to rehear.
The act of 1933 does not confer an absolute right upon every one to sell beer, and like beverages, but restricts it to those only who obtain permits and pay the required tax. In order to obtain a permit, the applicant has to satisfy the county court, or a committee appointed by that court, as to his qualifications and character, and has to execute a bond for $2,000, with solvent sureties thereon. The act contains other restrictions and limitations.
It is still a violation of section 11208 to sell beer or other like beverages unless the accused has brought himself within the exception provided by the act of 1933. In this...
To continue reading
Request your trial
-
Lea v. State
...exceptions are not required to be set forth in indictments charging unlawful possession, etc., of intoxicating liquors. McHenry v. State, 168 Tenn. 667, 80 S.W.2d 655; Clark et al. v. State ex rel. Bobo, 172 Tenn. 429, 113 S.W.2d 374, It is first to be observed that we are here presented wi......
-
Chadrick v. State
...The State relies, as direct authority here, upon the opinion of Mr. Justice McKinney, on the rehearing in the case of McHenry v. State, 168 Tenn. 667, 669, 80 S. W.2d 655, wherein the defendant was convicted of violation of Code section 11208 declaring it to be unlawful for any person to se......
-
Thornberg v. E. T. & W. N. C. Motor Transp. Co.
...is not required to negative an exception to the statute unless the exception is a part of the description of the offense. McHenry v. State, 168 Tenn. 667, 80 S.W.2d 655; State v. Brewer, 163 Tenn. 215, 42 S.W.2d 344; Griffin v. State, 109 Tenn. 17, 70 S.W. 61; Villines v. State, In the case......
- McHenry v. State