State v. Boggess

• Decision Date: 18 June 1892
• Citation: 15 S.E. 423,36 W.Va. 713
• Court: West Virginia Supreme Court
• Parties: State v. Boggess.

15 S.E. 423

36 W.Va. 713

State

v.Boggess.

Supreme Court of Appeals of West Virginia.

June 18, 1892.

Intoxicating Liquors—Sale to Minor —Indictment—Sufficiency.

1. An indictment under section 16, c. 32, Code 1887, against a person having a license to sell spirituous liquors, for a sale to a minor, need not specify the particular place where the sale was made, or allege that the place where the sale was made was the place designated in the license as the place at which the license was to be exercised.

2. Form of indictment No. 646, in Hutchinson's Treatise for Justices, held good.

3. It is generally sufficient, in an indictment, to allege a statutory offense in the language at the statute.

(Syllabus by the Court.)

Error to circuit court, Monongalia county.

A. M. Boggess was indicted for furnishing liquor to a minor. The indictment was quashed, and the state brings error. Reversed.

Alfred Caldwell, Atty. Gen., for the State.

Joseph Moreland, for defendant in error.

Brannon, J. In February, 1890, in the circuit court of Monongalia county, the following indictment was found "State of West Virginia, Monongalia county, to wit: The grand jurors of the state of West Virginia, in and for the body of the county of Monongalia, upon their oaths present that A. M. Boggess, on the—— day of November, in the year 1889, within one year nest preceding the date of the finding of this indictment, in the said county, he, the said A. M. Boggess, having then and there a state license to sell spirituous liquors, wine, porter, ale, beer, and other intoxicating drinks, did at his place of business, and on premises under his control, in the town of Morgantown, then and there unlawfully, and in violation of the conditions of his license bond, sell and give away to Frank Fisher, a minor under twenty-one years of age, spirituous liquors, wine, porter, ale, beer, and other intoxicating drinks, he, the said A. M. Boggess, then and there knowing and having reason to believe the said Frank Fisher was then and there a minor under twenty-one years of age, against the peace and dignity of the state." The court quashed the indictment on defendant's motion, and the state comes to this court.

The indictment is according to form 646, p. 1102, of Hutchinson's Treatise for Justices. The point of its alleged insufficiency is that it does not specify the particular place where the sale to the minor was made, and does not allege that such place is the same place specified in the license as the place where the business authorized in the license was to be carried on. The defendant's counsel relies chiefly on Church's Case, 4 W. Va. 745, holding defective an indictment for a violation of the conditions of a bond given to obtain a license to sell spirituous liquors, not alleging that the offense occurred at the place where the liquors were to be sold under the license. Now, if we compare the provisions pertinent to this subject found in the Code of 1868, under which Church's Case was decided, we find them materially different from those found in the Code of 1887, under which this case was decided. The indictment in Church's Case was for permitting a person to drink to intoxication on premises under control of the defendant, and was under section 12, c. 32, Code 1868, which provided that, before any license to sell liquors should be granted, a bond must be given, "conditioned that he will not permit any person to drink to intoxication on any premises under the control of such applicant; and will not sell or furnish any intoxicating drink to any person who is intoxicated at the time, or who is known to him to have the habit of drinking to intoxica tion, or who is under the age of twenty-one years; and that he will not sell or furnish such drink to any person on Sunday. Every person violating any of the conditions of said bond shall be guilty of a misdemeanor, and on conviction thereof shall be fined for each offense not less than ten nor more than one hundred dollars. And he and his sureties in said bond shall be liable in a suit or suits thereon for every such fine, and the costs, until the penalty of the said bond is exhausted." Now, observe that said section defines the offense, and provides for conviction, and fixes the fine. Under it alone the act of permitting a person to drink to intoxication, as alleged against Church, could therefore be indicted and punished; and, in fact, it must have been prosecuted under that section, for there was no other section in the Code of 1868 making that act an offense, or providing for its prosecution. But under the Code of 1887 the act of permitting a person to drink to intoxication, and the act of selling to a minor, are punishable under section 16 of chapter 32, which simply punishes one having a license to sell for those acts, without any specification as to the place of sale, and without any reference to the bond; and these acts are punishable only under that section, for there is no other section declaring them offenses, or providing for their punishment, since section 22, c. 32, Code 1887, providing for a bond, unlike section 12 on the same subject in the Code of 1868, does not make those acts offenses, nor provide for conviction, nor fix any penalty. In other words, under the Code of 1868, we could look alone to the section requiring a bond to render those acts offenses and to provide for their punishment and penalty; whereas, under the Code of 1887, we cannot look to the bond section to pronounce such acts offenses, or to provide for their prosecution, or to fix the penalty, for it does not perform these functions; but we must look alone to another section (section 16) for the prohibition of these acts, and for the penalty therefor. Section 16, c. 32, Code 1887, reads as follows: "If any person, having a state license to sell spirituous liquors, wine, porter, ale, beer, or any other intoxicating drink, shall sell or give any such liquors or drinks to any minor, or person of unsound mind, or to any person who is intoxicated at the time, or who is in the habit of drinking to intoxication, or if he permits any person to drink to intoxication, when he knows, or has reason to believe, such person is a minor, or of unsound mind, or is intoxicated, or is in the habit of drinking to intoxication, on any premises under his control, or sell or give any intoxicating drink to any one on Sunday, he shall be guilty of a misdemeanor, and fined not less than twenty nor more than one hundred dollars." Sec-ton 22, c. 32, Code 1887, provides that no license to sell spirituous liquors shall issue until a bond has been given, "conditioned that he will not permit any person to drink to intoxication on any premises under the control of such applicant; and will not knowingly sell or furnish any intoxicating drink to any person who is in-toxica ted at the time, or who is known to him to have the habit of drinking to intoxication, or who he knows, or has reason to...