People v. Barnes

• Court: Illinois Supreme Court
• Writing for the Court: DE YOUNG
• Citation: People v. Barnes , 314 Ill. 140, 145 N.E. 391 (Ill. 1924)
• Decision Date: 03 December 1924
• Docket Number: No. 15564.,15564.
• Parties: PEOPLE v. BARNES.

314 Ill. 140

145 N.E. 391

PEOPLE

v.BARNES.

No. 15564.

Supreme Court of Illinois.

Oct. 28, 1924.

Rehearing Denied Dec. 3, 1924.

Error to Circuit Court, McLean County; Edward Barry, Judge.

Ellen Barnes was convicted of violation of the Illinois Prohibition Act, and she brings error.

Reversed.

Stone, J., Duncan, c. J., and Farmer, J., dissenting.D. J. Sammon, of Bloomington, and John E. Dougherty, of Peoria, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Lester H. Martin, State's Atty., of Bloomington, George C. Dixon, of Dixon, and Joseph W. De Pew, of Bloomington, for the People.

DE YOUNG, J.

Ellen Barnes, the plaintiff in error, was indicted by the grand jury at the April, 1923, term, of the circuit court of McLean county for violation of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1923, c. 43). The indictment consists of five counts. The first count charges that she ‘unlawfully did then and there manufacture certain intoxicating liquor’; the second, that she ‘did then and there unlawfully possess certain intoxicating liquor’; the third, that she ‘unlawfully did then and there keep for sale certain intoxicating liquor’; the fourth, that she ‘unlawfully did then and there sell certain intoxicating liquor’; and the fifth, that she ‘unlawfully did then and there have in her possession property designed and intended for use in the unlawful manufacture of intoxicating liquor.’ The words ‘intoxicating liquor’ in the first four counts above quoted are followed in each of those counts by the recital, ‘said intoxicating liquor then and there containing more than one-half of 1 per cent. of alcohol by volume.’ A motion to quash the indictment was made by the plaintiff in error on the grounds, among others, that (1) the indictment, and each of its counts, is insufficient to charge an offense against the law; and (2) the Illinois Prohibition Act is unconstitutional. The motion was overruled. On the trial the jury returned a verdict, finding the plaintiff in error guilty on all the counts of the indictment. Motions for a new trial and in arrest of judgment were overruled and the plaintiff in error was sentenced on each count to pay a fine of $300 and also the costs. On the ground that a constitutional question is involved, the cause comes to this court directly.

Numerous errors are assigned, but the plaintiff in error in her brief and argument relies only on two points: First, that the indictment, and each count thereof, is insufficient and should have been quashed by the trial court; and, second, that the Illinois Prohibition Act is unconstitutional, because(a) the act, in making the manufacture of liquor an offense, without specifying that it was for beverage purposes, contravenes the Eighteenth Amendment to the federal Constitution; and (b) nothing in that amendment authorizes the General Assembly to enact a law making it a crime to possess implements designed or intended for use in the manufacture of intoxicating liquor.

Section 3 of the Illinois Prohibition Act (Smith's Stat. 1923, p. 835) provides:

‘No person shall on or after the date when this act goes into effect, manufacture, sell, barter, transport, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquorfor nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, delivered, furnished and possessed, but only as herein provided, and the Attorney General may, upon application, issue permits therefor, but in case the office of commissioner of prohibition shall be created, then such commissioner shall issue said permits: Provided, that nothing in this act shall prohibit the purchase and sale of warehouse receipts covering distilled spirits on deposit in government bonded warehouses.’

Section 28 of the same act (Smith's Stat. 1923, p. 839) provides:

‘It shall be unlawful to have or possess any liquor intended for use in violating this act or property designed for the illegal manufacture of liquor, and no property right shall exist in any such liquor or property.’

The word ‘liquor,’ or the phrase ‘intoxicating liquor,’ when used in the act, is defined by its second section (Smith's Stat. 1923, p. 834) to include various liquors ‘which are fit for use for beverage purposes.’ The third section above quoted requires a liberal construction of the act, to the end that the use of intoxicating liquor as a beverage may be prevented; and the same section permits liquor for nonbeverage purposes to be manufactured, purchased, sold, bartered, transported, delivered, furnished, and possessed in the manner prescribed by the act. The use of intoxicating liquor for beverage purposes is prohibited, but its use for nonbeverage purposes is, under certain conditions, expressly authorized. To manufacture, possess, sell, barter, transport, deliver, or furnish intoxicating liquor will, if unauthorized, offend against section 3, but, if authorized as the act provides, these acts will not violate that section. The possession of liquor, to constitute an offense under section 28, must be with the intent to use it in violation of the act. Such an intent is a necessary element of the offense defined by section 28. The various acts specified in section 3 may be lawful or unlawful; hence a definite charge cannot be made under the act without an allegation that the accused person is not within the exceptions contained in the statute.

[1][2][3][4][5][6][7] An indictment or information charging an offense denounced and defined by statute should be as fully descriptive of the offense as is the language of the statute, and should allege every substantial element of the offense as defined by the statute. 14 R. C. L. p. 185. In determining whether or not an exception or proviso in a statute must be negatived in an indictment, the real question is not the location in the statute of such exception or provise, but whether either is so incorporated with the substance of the definition of the offense as to constitute a material part of the description of the acts, omissions or other ingredients which constitute the offense. The offense must be accurately and clearly described, and, if the exception or proviso is so incorporated with the clause or section describing the offense that it becomes, in fact, a part of the description, it must not be omitted in the pleading. If, therefore, the language of the exception or proviso found in any part of the statute must be regarded as descriptive of the offense created by such statute, then the exception or proviso must be negatived. United States v. Cook, 17 Wall. (84U. S.) 168, 21 L. Ed. 538. If an act is prohibited under certain conditions, the indictment must allege the circumstances, for the purpose of showing that the prohibited act constituting the crime has been committed. Sokel v. People, 212 Ill. 238, 72 N. E. 382. Where an act is not in itself necessarily unlawful, but becomes so by its circumstances, all the matters necessary to show its illegality must be stated in the indictment or information. 14 R. C. L. p. 175. The charge as alleged must be an offense against the law, and, if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient. 14 R. C. L. p. 174. An indictment should set forth every element of which the offense is composed, and where the intent is made a part of the offense it should be alleged in the indictment and proved on the trial. United States v. Cook, supra; United States v. Wentworth & O'Neill (C. C.) 11 F. 52;United States v. Dowling (D. C.) 278 F. 630;Beasley v. People, 89 Ill. 571.

[8][9] To sustain the indictment. defendant in error invokes section 39 of the act, which provides:

‘It shall not be necessary in any affidavit, information or indictment * * * to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful.’

It is not sufficient to charge an offense in the language of the statute alone, where by its generality it may embrace acts which it was not the intent of the statute to punish. Such facts must be alleged that, if proved, defendant cannot be innocent. 31 Corpus Juris, p. 713. The pleader must either charge the offense in the language of the statute or specifically set forth the facts constituting it. But, where the statute creating a new offense does not describe the act or acts which compose it, the pleader is required to state them specifically. Johnson v. People, 113 Ill. 99. Section 9 of the Bill of Rights provides that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. The purpose of this guaranty is to secure to the accused person such specific designation of the offense laid to his charge as will enable him to prepare full for his defense and to plead the judgment in bar of a subsequent prosecution for the same offense. West v. People, 137 Ill. 189, 27 N. E. 34,34 N. E. 254;People v. Clark, 256 Ill. 14, 99 N. E. 866, Ann. Cas. 1913E, 214;People v. Covitz, 262 Ill. 514, 104 N. E. 887.

[10] Defendant in error also relies upon section 40 of the act, which provides:

‘The possession of liquors by any person not legally permitted under this act to possessliquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this act.’

The presumption arises only from possessionby a person not legally permitted under the act to possess liquor. If the possession is lawful, by authority of the act, then no such presumption can arise.

[11] The first, second, third, and fourth counts, respectively, charge that the plaintiff in error...