State v. Bailey

• Court: Washington Supreme Court
• Writing for the Court: ELLIS, J.
• Citation: State v. Bailey, 67 Wash. 336, 121 P. 821 (Wash. 1912)
• Decision Date: 28 February 1912
• Parties: STATE v. BAILEY.

121 P. 821

67 Wash. 336

STATE v. BAILEY.

Supreme Court of Washington

February 28, 1912

Department 2. Appeal from Superior Court, Stevens County; D. H. Carey Judge.

Sherman Bailey was convicted of giving away liquor to an Indian, and he appeals. Affirmed.

O. W Noble and Jesseph & Grinstead, for appellant.

Howard W. Stull, for the State.

ELLIS J.

The defendant was convicted by a jury of the crime of giving liquor to an Indian. From the judgment and sentence entered upon the verdict he has prosecuted this appeal.

1. The first assignment of error rests upon a contention that the information did not charge a crime, in that it failed to state that the liquor given away was of a character 'which produces intoxication.' The charging part of the information was as follows: 'That on or about the 7th day of September, A. D. 1910, in the county of Stevens, state of Washington, the said Sherman Bailey, then and there being, did then and there unlawfully, willfully and feloniously give away spirituous liquor, to wit, one bottle thereof to one Joaquin La Fleur, the said Joaquin La Fleur then and there being a mixed blood Indian, and being more than one-eighth Indian.' The statute (Rem. & Bal Code, § 6288) under which the information was drawn, so far as pertinent to appellant's claim, is as follows: 'Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous or vinous liquor of any kind whatever, or any essence, extract, bitters, preparation, compound,composition, or any article whatsoever, under any name, label or brand, which produces intoxication, * * * shall be guilty of a felony,' etc. It is argued that the phrase, 'which produces intoxication,' is a limitation upon all that part of the section which precedes it; that, therefore, the failure to describe the liquor, though designated 'spirituous,' as of a kind 'which produces intoxication,' ws fatal to the information. We cannot so hold. Spirituous liquors are in their nature intoxicating. The term requires no qualifying words to define this intrinsic quality. The qualifying phrase refers only to these essences, compounds, etc., which are enumerated immediately preceding it. Essences, compounds, etc., are not all essentially intoxicating, and therefore these terms required the additional qualification of the phrase to bring them within the plain purpose of the statute, which is to prevent the acquiring by Indians of intoxicants in any form. This interpretation is in accord with the rules of both legal and grammatical construction. 'The term 'spirituous liquors' is not synonymous with the term 'intoxicating liquors,' nor can the two expressions be used interchangeably. All spirituous liquor is intoxicating; but there are varieties of intoxicating liquor which cannot properly be described as spirituous. The latter term is properly restricted to such liquors as are produced by the process of distillation, and does not include wine, ale, beer, or other liquors which are not the product of the still, unless the terms of a statute extend its signification so as to make the term cover liquors which are not etymologically within its meaning.' 23 Cyc. p. 59. 'All spirituous liquor is intoxicating, yet all intoxicating liquor is not spirituous.' Clifford v. State, 29 Wis. 327; 7 Words & Phrases, pp. 6610 et seq.; State v. Reily, 66 N. J. Law, 399, 52 A. 1005; Commonwealth v. Grey, 2 Gray (Mass.) 501, 61 Am. Dec. 476; Luther v. State, 83 Neb. 455, 120 N.W. 125, 20 L. R. A. (N. S.) 1146. 'Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.' 2 Lewis' Sutherland Statutory Construction (2d Ed.) § 420. In discussing a closely analogous statute, the Supreme Court of Alabama has said: '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.'' Marks v. State, 159 Ala. 71, 78, 79, 48 So. 864, 867, 133 Am. St. Rep. 20. The demurrer to the information was properly overruled.

2. It is next claimed that the court erred in permitting the introduction of the prescriptions upon which appellant purchased the alcohol, showing that the purchase was represented as for 'mechanical purposes' to rebut his testimony that he purchased it for the special purpose of medicinal use in treating muscular rheumatism with which he sometimes suffered. The argument is that, the purpose of the purchase being immaterial, his statement in regard thereto was not a proper subject for impeachment or contradiction. It is undoubtedly the correct rule that impeachment or contradiction is not permissible on purely collateral matters. 2 Wigmore on Evidence, § 1001. But here the evidence of which contradiction was sought was not directed to a purely collateral matter. The defendant's testimony as to the purpose of the purchase had a direct bearing upon his intention in giving the alcohol to the Indian as tending to show that his intent was not to give it to the Indian for his own use, but to intrust it to him for carriage as the defendant claimed. Any evidence tending to contradict or discredit this testimony was therefore admissible. 'A witness' acts variant from his testimony on the stand may ordinarily be shown to impeach him. * * * Where a witness testifies to the ideals, conduct, acts, intent, or motives of himself or a body of persons of which he is a member specific acts of his at variance with his representations may be proved.' 7...