Powell v. State

• Decision Date: 05 March 1941
• Docket Number: 25.
• Citation: 18 A.2d 587,179 Md. 399
• Parties: POWELL v. STATE.
• Court: Maryland Court of Appeals

18 A.2d 587

179 Md. 399

POWELL v. STATE.

No. 25.

Court of Appeals of Maryland

March 5, 1941

Appeal from Criminal Court of Baltimore City; Hon. Eugene O'Dunne, Judge.

Bernard Powell was convicted of violating the Alcoholic Beverages Act, and he appeals.

Affirmed.

Herbert H. Rosenbaum, of Baltimore, for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen., Morton E. Rome, Asst State's Atty., of Baltimore (William C. Walsh, Atty Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Argued before SLOAN, MITCHELL, JOHNSON, DELAPLAINE, and COLLINS, JJ.

DELAPLAINE Judge.

Bernard Powell, the appellant, was indicted, tried and convicted in the Criminal Court of Baltimore City for unlawfully selling an alcoholic beverage without a license and otherwise violating the Maryland Alcoholic Beverages Act. The evidence showed conclusively that he sold diluted denatured alcohol in a house on Watson Street in Baltimore. The question to be decided is whether the sale of denatured alcohol for beverage purposes without a license is a violation of the law.

The statute provides that it shall be unlawful for any person to sell an alcoholic beverage without a license, except as therein provided. Code, art. 2B, sec. 2. It further declares that the term 'alcoholic beverage' includes any liquor containing one-half of one per cent. or more of alcohol by volume, which is 'fit for beverage purposes.' Code, art. 2B, sec. 1. The appellant contends that since denatured alcohol is poisonous it is not fit for beverage purposes.

At the trial of the case in the Court below, sitting without a jury, the Chief of the Bureau of Standards of Baltimore testified that the alcohol, denatured according to government specifications, contained wood alcohol and gasoline. After being diluted, it contained 34.4 per cent. of alcohol. The Court granted an advisory instruction offered by the State that if the Court found beyond a reasonable doubt that the defendant had sold for beverage purposes denatured alcohol, diluted with water so as to contain 34.4 per cent. of alcohol, then as a matter of law it was an 'alcoholic beverage' as defined by the statute. The Court rejected the defendant's prayer that even though he had sold the denatured alcohol for beverage purposes, the Court might find him not guilty. If an instruction in a criminal case be erroneous, even though in a mere advisory form, it may be made the subject of an exception which can be considered on appeal. Beard v. State, 71 Md. 275, 281, 17 A. 1044, 1046, 4 L.R.A. 675, 17 Am.St.Rep. 536.

The cardinal rule of construction of statutes is to ascertain the intention of the Legislature. This intention must be sought, first of all, in the language of the statute itself. But if a word is fairly susceptible of two or more interpretations, the Court should seek the intention by considering the object to be accomplished, and adopt the meaning which will harmonize with the general scheme of the statute and assist in carrying out the legislative purpose. United States v. Nomel Products Co., D.C., 41 F.2d 544; Black, Interpretation of Laws, §§ 24, 25, 27, 30; 59 C.J., Statutes, §§ 563, 569, 570. The purpose of the Maryland Legislature, as declared in the title of the Alcoholic Beverages Act, was not merely to license the sale of certain alcoholic beverages, but to regulate and control the liquor traffic in the State. Acts of 1933, Extra Sess., ch. 2. It is observed that druggists are not required to have a license to sell medicinal, antiseptic or toilet preparations which are unfit for beverage purposes, but no druggist is allowed to sell alcoholic beverages for beverage purposes without a license. Code, art. 2B, sec. 2. Unquestionably, if druggists are forbidden to sell alcoholic liquors for beverage purposes without a license, other persons should likewise be forbidden. Moreover, the statute provides that any license issued thereunder may be revoked for any cause which may be necessary to promote the peace or safety of the community in which the place of business is situated. Code, art. 2B, sec. 57. There is even greater need for the regulation of the sale of denatured alcohol, which is apt to cause blindness of the addicts, than the sale of less harmful liquors.

According to the dictionaries, the following are among the meanings of the adjective 'fit': (1) conformable to a standard of right, duty, or appropriateness; proper; suitable; befitting; and (2) adapted to an end, object or design. We hold that the Legislature intended the second definition: 'adapted to an end, object or design.' This accords with the view of the Ohio Court of Appeals, which applied to the word 'fit' in the liquor statute of that State an ancient definition said to have been used as early as the third century: 'in correspondence with some other thing.' Ballabanos v. State, 15 Ohio App. 520. In the State of Washington, where the statute declared that the term 'intoxicating liquor' should include all liquors 'capable of being used as a beverage,' Rem.Comp.Stat. § 7307, the Court declared that the term should not be limited to those liquors which might be supposed to be reasonably fit to drink, or which some persons might consider palatable. State v. Ebel, 169 Wash. 326, 13 P.2d 1091, 1092. It is immaterial whether the liquor is suitable or desirable for beverage purposes, if it is prohibited by law and is in fact used as a beverage.

In 1881, when Kansas adopted prohibition, the Supreme Court of Kansas held that the law was not intended to forbid the sale of well-known medicines and culinary and toilet articles containing alcohol, but might apply to compounds or preparations which, while ostensibly made for medicinal purposes, are used merely as substitutes for the usual intoxicating beverages. Justice Brewer stated in that early case: 'Whether any particular compound or preparation of this class is then within or without the statute, is a question of fact, to be established by the testimony and determined by a jury. The courts may not say as a matter of law that * * * any particular ingredient does or does not * * * prevent it from ever becoming an intoxicating beverage.' Intoxicating Liquor Cases, 25 Kan. 751, 37 Am.Rep. 284, 294.

For some years, however, the Courts took the view that denatured alcohol, being poisonous, is unpotable and not an alcoholic beverage. The Supreme Court of Vermont, for instance asserted in 1900: 'Such alcohol is obtained by the destructive distillation of wood, is ranked as a narcotic poison, and * * * it kills the person drinking it. It was not intended to be used as a beverage, and could not be so used.' Fabor v. Green, 72 Vt. 117, 47 A. 391. But today it is widely known that denatured alcohol is frequently used as a beverage by degenerates. In the case at bar it was testified that diluted denatured alcohol is commonly known in Maryland as 'smoke.' In Montana, where a retail store repeatedly sold rubbing alcohol to addicts known as 'dehorners,' the Court asserted that such a sale is a violation of the law when made under circumstances from which it might reasonably be deduced that the purchaser intended to use it for beverage purposes. In reference to the argument that such alcohol is not actually fit to drink, the Court said: 'It is also quite clear that such denatured alcohol could be used as a beverage by persons of depraved taste, so it cannot be urged that such denatured alcohol could not be used for this purpose.' United Cigar Whelan Stores Corporation v. United States, 9 Cir., 113 F.2d 340, 344. While it is true that the denaturing of alcohol is supposed to make it unfit to drink, the Court should not say as a matter of law that when it is actually sold with the knowledge that it is to be drunk for the purpose of causing intoxication, it is not 'fit for beverage purposes' within the meaning of the statute, especially when the liquor completely intoxicates the purchaser without instantly killing him. Mahood v. Caldwell, 33 Ohio App. 292, 169 N.E. 317, 320. For that matter, as the Alabama Court of Appeals has said, there are some people who believe that most alcoholic liquors, which give rise to prosecutions for violations of prohibition statutes, are really...